The Issue The issue for disposition in this case is whether proposed Florida Administrative Code Rule 61D-6.0052 (Proposed Rule) is an invalid exercise of delegated legislative authority as defined in section 120.52(8), Florida Statutes.
Findings Of Fact Petitioner is a Florida for-profit corporation operating at the Palm Beach Kennel Club (PBKC) in West Palm Beach, Florida. Petitioner’s members are owners of greyhounds that are raced at the PBKC. Of the 12 greyhound kennels that operate at PBKC, nine are current members of Petitioner. Petitioner’s members each hold licenses issued by the Division pursuant to chapter 550, Florida Statutes. Some of the PBKC kennel owners are themselves licensed greyhound trainers, and some employ licensed trainers. Petitioner’s Articles of Incorporation establish its purposes as including the promotion of “the welfare and care of greyhounds, . . . including, but not limited to, . . . promoting fair regulatory treatment of the greyhound industry.” The Division is the state agency charged with regulating pari-mutuel wagering activities in Florida pursuant to chapter 550. The Proposed Rule The full text of the Proposed Rule is as follows: 61D-6.0052 Procedures for Collecting Samples from Racing Greyhounds Designating Greyhounds for Sampling: Any greyhound the judges, division, track veterinarian, or authorized division representatives designate, shall be sent immediately prior to the race to the detention enclosure for examination by an authorized representative of the division for the taking of urine and/or other such samples as shall be directed for the monitoring and detection of both permissible and impermissible substances. When possible, a sample should be collected from two (2) greyhounds per race. When possible, greyhounds from more than one participating kennel should be sampled per performance. Additional greyhounds may also be sampled if designated by the judges, division, track veterinarian, or authorized division representatives. Collection of Samples: Urine and/or other samples shall be collected by an authorized representative of the division in an unused sample container supplied by the division, or its agent. Authorized representatives of the division shall wear unused gloves supplied by the division, or its agent, during sample collection until the sample container is sealed with its lid. Authorized representatives of the division shall use a sample card with a unique identifier to record the date of sample collection and the identification tattoo, microchip or name of the greyhound sampled or attempted to be sampled. The owner, trainer of record, or other authorized person is permitted to witness when the sample is collected from their greyhound. Failure of an owner, trainer of record or other authorized person to witness and/or sign the sample card shall not preclude the division from proceeding with sample analysis. Sealing and Labeling of Samples: As soon as possible after a sample is collected, the sample container shall be sealed with its lid. The sample container shall be labeled with the sample card’s unique identifier. Evidence tape shall be placed over both the sample container and lid on at least two sides. The authorized representative of the division that sealed the sample container shall initial the evidence tape on the sample container. Storing and Shipping of Samples: The samples shall be stored in a lockable freezer or container in a restricted area accessible by only authorized representatives of the division until the time of shipment. Upon the completion of packing the samples for shipment, the shipping container shall be locked. All appropriate forms for shipment shall be completed and included with the shipment to ensure correct delivery and identification of the contents. The samples shall be shipped to the laboratory under contract with the division for testing of the samples via the laboratory’s contracted common carrier. Authority of the Division: The division investigator or other authorized representative is authorized to confiscate any legend or proprietary drugs, medications, unlabeled medication, medication with altered labels, medicinal compounds (natural or synthetic) or other materials which are found on the grounds of greyhound race tracks and kennel compounds or in the possession of any person participating in or connected with greyhound racing, including veterinarians and trainers, and which are suspected of containing improper legend or proprietary drugs, medications, medicinal compounds (natural or synthetic) or other materials which are illegal or impermissible under these rules. Such legend or proprietary drugs, medications, unlabeled medication, medication with altered labels, medicinal compounds (natural or synthetic) or other materials shall be delivered to the laboratory under contract with the division for analysis. The division is authorized to confiscate any evidence that an illegal or impermissible legend or proprietary drug, medication, or medicinal compound (natural or synthetic) may have been administered to a racing animal. It is a violation of these rules for a licensee to threaten to interfere, actually interfere or prevent the taking of urine, blood, saliva or other samples authorized by Chapter 550, F.S. For such a violation, the division may impose any disciplinary penalties authorized by Chapter 550, F.S., or the rules promulgated thereunder. Rulemaking Authority 120.80(4)(a), 550.0251(3), 550.2415(12), (13) FS. Law Implemented 120.80(4)(a), 550.0251, 550.1155, 550.2415 FS. History–New . Issues for Disposition Section 120.56(2)(a) provides that “the agency has the burden to prove by a preponderance of the evidence that the proposed rule is not an invalid exercise of delegated legislative authority as to the objections raised.” The “objections raised” as identified in the Joint Pre- hearing Stipulation are those that remain for disposition in this proceeding, with issues not preserved having been waived. See Palm Beach Polo Holdings, Inc. v. Broward Marine, Inc., 174 So. 3d 1037 (Fla. 4th DCA 2015). As set forth in the recitation of “Petitioner’s Position,” the following issues are at issue: The proposed rule refers to urine and/or other samples in its text, yet only contains procedures for urine collection; The proposed rule fails to adequately detail necessary chain of custody procedures for sampling racing greyhounds; The proposed rule ignores basic scientific principles as to contamination; The proposed rule ignores basic scientific principles as to the timing of sampling; The proposed rule ignores basic scientific principles as to the temperature of a sample; The proposed rule fails to provide trainers and owners of an opportunity to witness their greyhounds' sampling; The proposed rule grants too much discretion to Respondent; Respondent failed to follow the applicable rulemaking procedures set forth in chapter 120; The proposed rule does not limit its application to urine; Stipulated Facts The following facts were stipulated by the parties: It is possible that a racing greyhound could become exposed to environmental substances during the time between the trainer relinquishing it at the track and the sampling. The reason that racing greyhounds are tattooed is for identification purposes. It is important to prevent contamination of a racing greyhound's sample. It is important to preserve the integrity of a racing greyhound's sample. The Proposed Rule does not require racing greyhound samples to be stored frozen. However, subsection (4)(a) of the Proposed Rule requires that the samples are stored in a lockable freezer or container. The Proposed Rule does not require that the racing greyhound samples be kept refrigerated. However, subsection (4)(a) of the Proposed Rule requires that samples be stored in a lockable freezer or container. The Proposed Rule does not contain any provisions for the drawing of blood, "other specimens," or other fluids from the racing greyhound. The Proposed Rule does not describe how all the individuals involved in the chain of custody of a racing greyhound sample record their involvement. The Proposed Rule contains a section entitled "Sealing and Labeling of Samples." The Proposed Rule does not describe the chain of custody for the taking of "other specimens" from the racing greyhound. The Proposed Rule does not describe the chain of custody procedures associated with materials confiscated under paragraph five of the Proposed Rule. Respondent published its Notice of Development of Rulemaking for Proposed Rule 61D-6.0052, F.A.C. (Notice of Development), on January 22, 2018. Respondent published its Notice of Proposed Rule 61D- 6.0052, F.A.C. (Notice of Proposed Rule), on January 29, 2018. Respondent's Notice of Proposed Rule 61D-6.0052, F.A.C., indicated it was approved by the agency head, Jonathan Zachem, on January 26, 2018, a mere [four] days after publication of Respondent's Notice of Development of Rulemaking for Proposed Rule 61D-6.0052, F.A.C. On February 6, 2018, a rule development workshop was requested for Proposed Rule 61D-6.0052, F.A.C. Respondent did not hold a rule development workshop for Proposed Rule 61D-6.0052, F.A.C. Respondent did not provide an explanation in writing as to why a workshop was unnecessary for Proposed Rule 61D-6.0052, F.A.C., other than Bryan A. Barber's letter of February 13, 2018. Facts Adduced at Hearing The purpose and effect of the Notice of Development was “to further clarify and describe the procedures performed by the Division in collecting samples from greyhounds and to create a rule specific to the greyhound sample collection. The Notice of Proposed Rule did not contain a statement of estimated regulatory costs imposed on small businesses. On February 6, 2018, Petitioner, through its representative, sent a letter to the Division requesting a rule development workshop. On February 13, 2018, the Division noted that the “rule development phase” ended with the publication of the Notice of Proposed Rule, and the request for a workshop was, therefore, untimely. There is no evidence that anyone provided the Division with information regarding a statement of estimated regulatory costs, or provided the Division with a proposal for a lower cost regulatory alternative. No one requested that a public hearing be held on the Proposed Rule. Racing greyhounds are delivered to the track by their owners or trainers prior to the commencement of their race card. Greyhounds racing during the matinee card are delivered at one time, and greyhounds racing during the evening card are delivered at a later time. The greyhounds are all weighed in about 60 to 90 minutes prior to the first race, regardless of the race in which a particular greyhound is scheduled to appear. After weigh-in, the greyhounds are handed over to the “lead-outs,” who are track employees, and taken to the ginny pit. Each greyhound is then placed in a numbered cage designating its race and position, and held there until its race is scheduled to commence. From the time an animal is given over to the lead-outs until its race is over, they are out of the control and sight of the owners and trainers. For greyhounds racing in the last race of a card, that period can be well in excess of four hours. Prior to each race, the race judge, Division, track veterinarian, or “authorized division representative” designates the greyhounds to be tested for that race. The process was not described, other than as described in the rule that “[w]hen possible, a sample should be collected from two (2) greyhounds per race. When possible, greyhounds from more than one participating kennel should be sampled per performance.” Mr. Ehrhardt testified that “ideally it’s blind and that you just pick one at random,” and that dogs from separate kennels be selected “to ensure that no one is singled out.” However, the Proposed Rule contains no criteria for the selection of an animal other than its being in the race. Even a requirement that the selection be random, and a mandatory selection of different kennels be made “when possible,” is sufficient to preclude an unfettered exercise of discretion in the selection of the greyhound. As it is, the selection of both dogs and kennels is completely within the discretion of the Division. Upon selection, the greyhounds are led to an open area to relieve themselves. At the Orange Park Kennel Club, the area is a restricted access grass and sand area surrounded by a chain link fence. There was no evidence as to other tracks, but there is little to suggest that the areas at other tracks are dissimilar. The process of collecting the sample involves watching the dog for a sign that it is ready to urinate, and then holding a plastic cup at the end of a stick, an “armed doohickey” as described by Mr. Ehrhardt, under the dog until it produces a sample. The sampler wears fresh gloves and uses an unused cup. When the sample is collected, the sampler places the lid on the container, labels the container, and places evidence tape “over both the sample container and lid on at least two sides.” After the sample cup is capped, labeled, and sealed, it is placed in a “lockable freezer or container in a restricted area.” Mr. Ehrhardt indicated that it was the Division’s intent that the freezer or container should be locked at all times that it is not being accessed to place samples in it, and that it should not be left unlocked. However, the plain language of the rule suggests otherwise. The lockable container is to be in a restricted area, but is only required to be locked “[u]pon completion of the packing of the samples for shipment.” Dr. Tobin testified that samples must be kept frozen or, at a minimum, refrigerated. Mr. Ehrhardt testified that once a sample is collected, it goes “straight to the freezer,” suggesting that freezing is the preferred method of storage. Failure to do so can result in degradation of the sample, bacterial growth, and, in certain cases, breakdown of substances into metabolites that would more closely mimic a prohibited substance in a dog’s urine. Petitioner argued that the timing of the sampling is problematic for another reason, other than the holding period for the greyhounds. Many owners and trainers have more than one dog racing during a card. The ginny pit and the finish line are at different ends of the track. Therefore, a trainer or owner may be collecting their dog(s) at the conclusion of a race at the same time the pre-race sample is being taken for the next race, making observation of the sampling difficult from a practical perspective. However, both Mr. Agganis and Mr. Chin acknowledged that there was nothing to directly prevent an owner or trainer from observing the sampling. Furthermore, there is nothing to prevent the owner or trainer, or even Petitioner’s members collectively, from having an employee or agent witness the sampling on their behalf, since the rule allows “[t]he owner, trainer of record, or other authorized person” to witness the sampling. In no fewer than 10 places in the Proposed Rule, actions are authorized to be taken by an “authorized representative” of the Division, or an “other authorized person.” The Proposed Rule does not identify who those representatives or persons might be, or how they may come to be authorized. Mr. Ehrhardt testified that the purpose of the less definitive description was “to figure out a way to make the rule flexible,” to meet the possibility that a “job title is going to change.” During Mr. Ehrhardt’s visit to the Orange Park greyhound racing facility, he was allowed into the restricted ginny pit area by “authorized personnel from the division,” who he described as “veterinarian assistants, chief inspector, investigators, people like that.” Petitioner objected to the lack of specificity because it provided no assurances that these individuals are competent, or held to any particular standard.
The Issue The issues are whether the Correctional Certificate issued to the Respondent by the Criminal Justice Standards and Training Commission (the Commission), should be revoked or otherwise disciplined on charges stated in the Petitioner’s Amended Administrative Complaint,1/ FDLE case 40421.
Findings Of Fact The Respondent was certified as a correctional officer by the Commission on July 12, 2006. The parties stipulated that the Respondent holds Correctional Certificate 258546. (The Amended Administrative Complaint alleges he holds Correctional Certificate 25846.) On the afternoon of March 7, 2016, the Respondent was observed and videoed by a neighbor mistreating his dog. Specifically, the neighbor looked out her front window and saw the Respondent outside his house apparently bathing his dog, which was a large German shepherd. She could hear the Respondent’s nine-month-old child crying. She thought the child was standing behind a screen door. While she was watching, the dog got away from the Respondent and trotted toward the front door. The Respondent went after the dog, angrily grabbed it by the head and tail, lifted it off the ground several feet (to about waist-high), and slammed it down on the concrete walkway. He repeated the body slam and then brought the dog back to where he was washing it. At that point, the neighbor decided to video the Respondent and his dog with her cell phone. The video recording shows the Respondent pulling up on the dog’s tail and punching the dog in the side. Then, the Respondent shortened the dog’s leash by wrapping it several times around his hand until his hand was near the dog’s collar. Then, he flipped the dog over on its side by suddenly and violently jerking the leash and collar. After the neighbor witnessed the Respondent’s mistreatment of his dog, she reported him to the Polk County Sheriff’s office. A sheriff’s detective responded on March 21, 2016, and questioned the Respondent, who stated, “I guess I lost my temper that day.” The detective requested permission to remove the dog from the Respondent’s home to be examined by a veterinarian as part of an animal cruelty investigation, and placed in an animal shelter. The Respondent willingly surrendered the dog. The veterinarian who examined the dog found it to have soft tissue trauma at the base of its tail, but no fractures or broken bones. The veterinarian explained that a dog’s tail is an extension of its spine, and an injury at or near the base of the tail could have resulted from yanking the tail, or from lifting the dog by the tail, which is not designed to bear weight. The Respondent’s dog weighed about 77 pounds, and the tail would have been supporting about half the dog’s weight the way the Respondent was handling it. The veterinarian found that the dog had a temperature, and blood tests showed a high white blood cell count. Both symptoms are consistent with either inflammation from an injury, or an infection. The dog also had elevated kidney values, which could be consistent with an injury to the kidney, or with an infection. The veterinarian testified that she prescribed pain medication for the dog. The sheriff’s detective believed that antibiotics were prescribed. No other significant injuries to the dog were found, but the veterinarian recommended that the dog not be returned to its owner. The Respondent did not object. At the hearing, the Respondent testified that just prior to the incident, his dog had been acting aggressively toward his child and had bitten the Respondent in the hand. He testified that he hoped the dog would calm down if taken outside to be bathed. He claimed that the dog was growling and acting aggressively toward him. He testified that he was afraid for his child’s safety when the dog got away from him and ran toward the door. He testified that his child actually was standing behind a child’s gate at the door, not behind a screen door, as stated by his neighbor. The neighbor disputed that the dog was acting aggressively while she was watching. She testified that the dog trotted to the front door with its tail wagging when it got loose from its owner during the bath. The video recording showed that the dog was not acting aggressively but was submissive while being manhandled by the Respondent. The Respondent admits that the dog did not try to bite him during his manhandling of the dog, and no growling (or much sound at all) could be heard on the video recording. The Respondent’s claims about his dog’s aggression and his concerns about his daughter’s safety were not reported to the sheriff’s detective on March 21, 2016, or to anyone else before the hearing. Even if the neighbor was mistaken in thinking the Respondent’s child was standing behind a screen door, the rest of her unbiased testimony is credited as more worthy of belief than the Respondent’s self-serving testimony, to the extent of any conflict. Taken as a whole, the evidence was clear and convincing that the Respondent’s treatment of his dog was inhumane and unnecessary.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission find the Respondent guilty of failing to maintain good moral character by acts violating section 828.12(1); suspend his correctional certificate for 60 days, or until completion of a Commission-approved course in anger management, whichever is later; and, upon reinstatement of his certificate, place him on probation for one year, conditioned upon maintaining good moral character, as defined by rule 11B-27.0011(4)(b). DONE AND ENTERED this 4th day of October, 2018, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of October, 2018.
The Issue The two issues in this case are whether Respondent, as the trainer of record for two greyhounds; M's Shamrock, that first place finisher in the fourth race on November 7, 2001, and greyhound Lapislazuli, first place finisher in the fourteenth race on November 7, 2001, is legally responsible for the prohibited substance found in each greyhound's urine sample taken immediately after the races, and if so, what penalty should be imposed.
Findings Of Fact 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. At all times relevant and material to this proceeding, Respondent, Curtiss D. Hughes, was the holder of a pari-mutuel license issued by the Division. Sanford-Orlando Kennel Club is a permit holder authorized to conduct greyhound racing and pari-mutuel wagering in the State of Florida. On November 7, 2001, Respondent was the trainer for a racing greyhound named M's Shamrock that finished first in the fourth race of the evening performance at Sanford-Orlando Kennel Club on that date. Immediately after each race the greyhounds who finish in the win, place and show positions are taken to the "cooling off" area where urine samples are taken by the Kennel's veterinarian assistant and urine sample collector. On November 7, 2001, Brandy Glaspey, veterinarian assistant, collected the urine sample of greyhound, M's Shamrock, and assigned, for identification purposes, number 738627 to M's Shamrock's urine sample. Urine sample 738627 was shipped to the University of Florida Racing Laboratory, Gainesville, Florida, where under the supervision of Dr. Ian R. Tebbett, Ph.D., professor and director of the racing laboratory at the University of Florida and qualified as an expert in forensic toxicology, it tested positive for illegal substance. On December 21, 2001, Respondent was the trainer for a racing greyhound named "Lapislazuli," which finished first in the fourteenth race of the matinee performance at Sanford- Orlando Kennel Club. Immediately after the race a urine sample was collected from Lapislazuli by Brandy Glaspey, veterinarian assistant, and assigned sample number 788210 for identification purposes. Urine sample numbered 788210 was shipped to the University of Florida Racing Laboratory, tested, and found to contain Benzoylecgonine, a metabolite of Cocaine. Cocaine is a Class 1 drug according to the Association of Racing Commissioners International classification system. Respondent testified that he did not administer the drug cocaine to greyhound, Lapislazuli, and he had never been cited for any prior drug violation while holding a Florida occupational license. Respondent's defense to the administrative complaint (Election of Right) alleged a possible breach of the "chain of custody" (from the end of the race, to bringing dogs to the ginny pit, to sample collection, to sample labeling, to sample examination and sample results) and a breach and/or lack of kennel security. There was no material evidence presented of a specific breach of security.
The Issue Whether Respondent failed to keep proof of vaccination on file for racing greyhounds in his kennel, had a hypodermic needle on premises where racing greyhounds were lodged or kept, or stored cleaning supplies in the same area as bedding intended for racing greyhounds, as alleged in the Administrative Complaint, and if so, what is the appropriate sanction.
Findings Of Fact The Department is the state agency charged with regulating pari-mutuel wagering in the state of Florida, pursuant to chapter 550, Florida Statutes. Mr. O'Donnell owns racing greyhounds. He keeps his dogs, along with some leased dogs of other owners, in kennels that he leases for that purpose. At all times material to this case, Mr. O'Donnell held a pari-mutuel wagering business occupational license, number 441699, issued by the Department. At all times material to this case, Mr. O'Donnell held a pari-mutuel wagering professional individual license, number 330177, issued by the Department. A "permitholder" is a person or entity which holds an annual license to conduct pari-mutuel operations at the location specified in the permit. The licenses held by Mr. O'Donnell do not allow him to operate a pari-mutuel track or to conduct pari- mutuel operations at specified locations. Mr. O'Donnell is not a permitholder. Mr. O'Donnell employed a licensed trainer, Mr. Dennis Smith, who was responsible for day-to-day activities involving the dogs. Mr. O'Donnell personally kept responsibility for setting up vaccinations for the dogs. Mr. O'Donnell was not always physically present when vaccinations were given. Dr. Emilio L. Vega was a licensed veterinarian that Mr. O'Donnell employed to vaccinate his racing dogs. Dr. Vega came to Mr. O'Donnell's kennels for many years to vaccinate the dogs. Dr. Vega died on September 4, 2010, at the age of 80 years. On September 14, 2011, Investigator Tyrell Smith of the Department was reviewing operations of licensees who own or train greyhounds at the Florida Kennels Compound in Hialeah, Florida. At kennel number 45, leased by Mr. O'Donnell, he asked a kennel helper to let him inspect the vaccination records for the dogs.3/ Fifty-two vaccination records that had been signed in 2011 were produced for dogs in that kennel, and the helper indicated that Mr. O'Donnell was keeping vaccination records for other dogs. Investigator Smith noted that the name in the veterinarian's signature block on the forms was Dr. Vega. He was not aware at that time that Dr. Vega was deceased and could not have signed the forms in 2011. On September 23, 2011, Investigator Smith asked a kennel helper at Steubenville Kennel, numbers 36 and 37, which are also leased by Mr. O'Donnell, for vaccination records for the dogs. The kennel helper provided four records that contained the name of Dr. Vega in the veterinarian's signature block, dated in 2011. After talking with other trainers at the track, Investigator Smith learned that Dr. Vega had died in 2010. On September 30, 2011, Investigator Smith and other employees of the Department visited two animal clinics where Dr. Vega had formerly worked. The clinics did not have vaccination records for dogs in any of Mr. O'Donnell's kennels. Investigator Smith was able to view copies of some other vaccination records, and the signature appeared to Investigator Smith to be the same signature that appeared on the forms that had been given to him for the dogs in Mr. O'Donnell's kennels. On October 4, 2011, Investigator Smith visited kennel number 39 in Hialeah and asked Mr. O'Donnell for the vaccination records for those dogs. Mr. O'Donnell told him that the records had been stolen. Investigator Smith asked Mr. O'Donnell if he had filed a police report. Mr. O'Donnell said he had not. He indicated that he would just re-do the vaccinations. Investigator Smith returned to kennel number 39 on October 14, 2011. The vaccination records were not available. Mr. O'Donnell gave Investigator Smith the telephone number of Dr. Ann Romano, a veterinarian, and was told that she would be able to give him the vaccination information. Investigator Smith called Dr. Romano, but had only a very brief conversation with her, because communication was poor and because she was leaving on vacation. On October 25, 2011, Investigator Smith returned to kennel number 39 and again requested to see vaccination records for the dogs. He was provided records signed on October 24, 2011, by Dr. Romano. He later talked to Dr. Romano, who confirmed that she had vaccinated the dogs on October 24, 2011, but had not ever vaccinated any of Mr. O'Donnell's dogs before that date. The rule provides no "grace period" for enforcement of the requirement to keep proof of vaccination on file. Mr. Charles Taylor is an investigation specialist for the Department. Investigator Taylor was asked by his supervisor to go to the Orange Park Kennel Club ("Orange Park") and examine dog vaccination records for dogs in Mr. O'Donnell's kennels to see if any had been signed by Dr. Vega. Investigator Taylor visited the Orange Park facility on December 21, 2011. In the racing secretary's office, he found 56 National Greyhound Association papers, with vaccination records attached, for dogs in Mr. O'Donnell's kennels. The National Greyhound Association is an association that registers racing greyhounds. Examining these 56 vaccination records, he found that 21 of them contained the name of Dr. Vega in the veterinarian's signature block, with dates ranging from January 15, 2011, to September 16, 2011. He also found one undated, blank record with Dr. Vega's name in the veterinarian's signature block. Investigator Taylor made copies of these vaccination records. He did not contact either Mr. O'Donnell or the trainer of record about these vaccination records. Dr. Vega was deceased and did not sign any vaccination forms in 2011. Any forms purporting to contain his signature with a 2011 date were invalid and did not constitute proof of vaccination. The Department had visited the workplaces of Dr. Vega, and no other proof of vaccination could be obtained through the treating veterinarian. On August 27, 2013, Mr. O'Donnell occupied or had the right to occupy kennel number 45, at the Florida Kennels Compound, 7218 West Fourth Avenue, Hialeah, Florida, 33014. Mr. Luis Miranda is the facility manager of the Florida Kennel Compound. He conducts regular walk-through inspections of the kennels. Mr. Miranda points out any violations he observes to Investigator Smith when he comes to inspect the kennels. On August 27, 2013, Mr. Miranda told Investigator Smith that Mr. Miranda had found that kennel 45 was dirty during his walk-through inspection.4/ Investigator Smith went to kennel 45. There was no one there. A kennel is never locked, because it must remain open for safety of the dogs; however, there is a security gate and guard on duty at the entrance to the facility, and only licensees can gain entrance. Inspector Smith testified that kennel 45 did not appear dirty. He looked in the medicine cabinet in the kitchen area of the kennel, which is only about five feet from the dogs. He saw a syringe with a hypodermic needle attached. He confiscated it, took a picture, and placed it in a storage container. He never asked Mr. O'Donnell about the needle. On October 10, 2013, Mr. O'Donnell occupied or had the right to occupy kennel numbers 36 and 37, at the Florida Kennels Compound. On October 10, 2013, Inspector Smith conducted an inspection of kennel numbers 36 and 37, the Steubenville Kennel. He found the vaccination records all in order. He found a bottle of Clorox bleach and spray bottles containing unknown substances sitting on top of a crate that had a dog sleeping inside. He asked kennel workers about the chemicals. They told him they had just put them up there for cleaning and would move them in a few minutes. He found a hypodermic needle with syringe in kennel 36. He photographed these items. Kennel helpers removed the bleach and spray chemicals. Mr. O'Donnell was not there when Investigator Smith arrived, but came later while Investigator Smith was still there. While the Department showed that a bottle of Clorox cleaning solution was on top of a crate that had a dog sleeping inside, it did not clearly show that the Clorox cleaning solution was being "stored" there. The word "store" is defined as "to take in or hold supplies, goods, or articles, as for future use" or "to deposit or receive in a storehouse or warehouse for safekeeping" or "to put something that is not being used in a place where it is available, where it can be kept safely, etc." See Random House Dictionary, Random House, Inc. (2014), online at http://dictionary.reference.com/browse/store; American Heritage Dictionary of the English Language, 5th ed. (2014), by Houghton Mifflin Harcourt, at www.ahdictionary.com/word/search.html?q=store; and Merriam-Webster Online Dictionary, http://www.merriam- webster.com/dictionary/store. If the helpers only placed the Clorox on the crate while they were using it, as claimed, the Clorox and other cleaning materials were not "stored" there. There was no clear evidence to refute the helpers' admissions. The Department showed by clear and convincing evidence that Mr. O'Donnell failed to keep proof of vaccination for 52 of his racing greyhounds on September 14, 2011. The Department showed by clear and convincing evidence that Mr. O'Donnell failed to keep proof of vaccination for his racing greyhounds on October 4, 2011. The Department showed by clear and convincing evidence that Mr. O'Donnell failed to keep proof of vaccination for 21 of his racing greyhounds on December 21, 2011. The Department showed by clear and convincing evidence that on August 27, 2013, and October 10, 2013, Mr. O'Donnell had hypodermic needles with syringes on premises which he had a right to occupy on the grounds of a racing permitholder where racing greyhounds were kept. Mr. O'Donnell has been involved with racing greyhounds for over 60 years. Prior to the incidents involved in this case, Mr. O'Donnell had never received a notice of violation from the Department.
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: (1) finding Mr. James E. O'Donnell guilty of 74 counts of violating Florida Administrative Code Rule 61D-6.009(9) and two counts of violating Florida Administrative Code Rule 61D- 6.004(2)(a); and (2) imposing an administrative fine of $76,000. DONE AND ENTERED this 24th day of December, 2014, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of December, 2014.
The Issue Whether Florida Administrative Code Rules 61D-6.007 and/or 61D-6.012 constitute an invalid exercise of delegated legislative authority.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing and the entire record in this proceeding, the following Findings of Fact are made: Petitioners, Charles L. McClellan and Natasha Nemeth, hold suspended Pari-Mutuel Wagering Individual Occupational Licenses that authorize them to train racing greyhounds. As licensees, Petitioners are subject to the provisions of chapter 550, Florida Statutes, and the rules promulgated thereunder, specifically chapter 61D-6. The Division is a state agency delegated the responsibility for the implementation and enforcement of Florida’s pari-mutuel laws under chapter 550, including the licensing and regulation of all pari-mutuel activities in the state. As licensees subject to disciplinary action by the Division, Petitioners have standing to bring this action. Section 550.2415(1)(a), Florida Statutes, prohibits the racing of an animal that has been impermissibly medicated or determined to have a prohibited substance in its system. To enforce section 550.2415, Division employees collect urine samples from racing greyhounds at the track prior to the greyhounds’ race. Fla. Admin. Code R. 61D-6.005(2). These samples are secured and shipped to the University of Florida Racing Laboratory (“UF Lab”) to be tested for impermissible substances. The Division and the UF Lab have entered into a contract pursuant to which the UF Lab conducts the drug testing analysis for all of the urine samples collected from racing animals at pari-mutuel tracks in Florida. At all relevant times, each of the Petitioners was working as the trainer of record for racing greyhounds in the Jacksonville area. The Division collected urine samples from Petitioners’ greyhounds and sent them to the UF Lab for testing. The UF Lab tested the urine samples and reported a total of 24 drug positives for benzoylecgonine (“BZE”) and/or ecgonine methyl ester (“EME”), both of which are metabolites of cocaine. Margaret Wilding, associate director of the UF Lab, testified that the lab currently reports as “positive” any reading for cocaine metabolites at or above 10 nanograms per milliliter (“ng/mL”), the UF Lab’s current limit of quantification. The Division filed Administrative Complaints against Petitioners alleging that they were the trainers of record for racing greyhounds whose urine was collected, tested, and found to contain BZE and/or EME. The proposed penalty would be imposed pursuant to rule 61D-6.012. Those complaints were referred to DOAH and are being held in abeyance pending the outcome of this proceeding.1/ Section 550.2415(1) provides, in relevant part: The racing of an animal that has been impermissibly medicated or determined to have a prohibited substance present is prohibited. It is a violation of this section for a person to impermissibly medicate an animal or for an animal to have a prohibited substance present resulting in a positive test for such medications or substances based on samples taken from the animal before or immediately after the racing of that animal. . . . 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 solicit input from the Department of Agriculture and Consumer Services and 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. 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. Section 550.2415(2) provides that the Division may take administrative action 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.” Rule 61D-6.002(1) provides that the trainer of record “shall be responsible for and be the absolute insurer of the condition of the . . . racing greyhounds” that he or she enters in a race.2/ Section 550.2415(7) provides as follows: (7)(a) In order to protect the safety and welfare of racing animals and the integrity of the races in which the animals participate, the division shall adopt rules establishing the conditions of use and maximum concentrations of medications, drugs, and naturally occurring substances identified in the Controlled Therapeutic Medication Schedule, Version 2.1, revised April 17, 2014, adopted by the Association of Racing Commissioners International, Inc. [referenced herein as the ARCI Medication Schedule].[3/] Controlled therapeutic medications include only the specific medications and concentrations allowed in biological samples which have been approved by the Association of Racing Commissioners International, Inc., as controlled therapeutic medications. The division rules must designate the appropriate biological specimens by which the administration of medications, drugs, and naturally occurring substances is monitored and must determine the testing methodologies, including measurement uncertainties, for screening such specimens to confirm the presence of medications, drugs, and naturally occurring substances. The division rules must include a classification system for drugs and substances and a corresponding penalty schedule for violations which incorporates the Uniform Classification Guidelines for Foreign Substances, Version 8.0, revised December 2014, by the Association of Racing Commissioners International, Inc. [referenced herein as the ARCI Guidelines].[4/] The division shall adopt laboratory screening limits approved by the Association of Racing Commissioners International, Inc., for drugs and medications that are not included as controlled therapeutic medications, the presence of which in a sample may result in a violation of this section. The division rules must include conditions for the use of furosemide to treat exercise-induced pulmonary hemorrhage. The division may solicit input from the Department of Agriculture and Consumer Services in adopting the rules required under this subsection. Such rules must be adopted before January 1, 2016. This section does not prohibit the use of vitamins, minerals, or naturally occurring substances so long as none exceeds the normal physiological concentration in a race-day specimen. Section 550.2415 does not define “medication,” “impermissibly medicated,” “prohibited substance,” “drug,” “naturally occurring substance,” “environmental contaminant,” or “laboratory screening limits,” except by reference to publications issued by the Association of Racing Commissioners International, Inc. (“ARCI”). ARCI is the umbrella organization of the official governing bodies for professional horse and greyhound racing in the United States. ARCI sets standards for racing regulation, medication policy, drug testing laboratories, and other matters pertaining to racing for participating jurisdictions. The ARCI “Uniform Classification Guidelines for Foreign Substances and Recommended Penalties and Model Rule” (“ARCI Guidelines”) are intended to assist stewards, hearing officers, and racing commissioners in evaluating the seriousness of alleged violations of medication and prohibited substance rules in racing jurisdictions. The ARCI Guidelines employ a “Drug Classification Scheme” based on pharmacology, drug use patterns, and the appropriateness of a drug for use in the racing animal.5/ Drugs that are known to be potent stimulants or depressants are placed in higher classes, while those that have (or would be expected to have) little effect on the outcome of a race are placed in lower classes. Drugs that are clearly not intended for use in racing animals are placed in higher classes, particularly if they may affect the outcome of a race. The ARCI Guidelines do not set screening limits or testing thresholds for any of the listed substances. The ARCI Guidelines classify cocaine and/or its metabolites as “Class 1 drugs” which are defined as: [S]timulant and depressant drugs that have the highest potential to affect performance and that have no generally accepted medical use in the racing horse. Many of these agents are Drug Enforcement Agency (DEA) schedule II substances. These include the following drugs and their metabolites: Opiates, opium derivatives, synthetic opioids, and psychoactive drugs, amphetamines and amphetamine-like drugs as well as related drugs. . . . The ARCI Guidelines state that Class 1 drugs “have no generally accepted medical use in the racing horse and their pharmacologic potential for altering the performance of a racing horse is very high.” Rule 61D-6.007, titled “Permitted Medications for Racing Greyhounds,” provides as follows: The following medications are permitted to be administered to racing greyhounds in the dosages and under the conditions listed below: The administration of testosterone or testosterone-like substances, when used for the control of estrus in female racing greyhounds, is permitted, subject to the following conditions: Track veterinarians may administer injectable testosterone on the grounds of the permitholder to female racing greyhounds for the control of estrus. Kennel owners may use their regular Florida licensed veterinarian or may enter into a collective agreement for the services of a Florida licensed veterinarian to administer injectable testosterone to female racing greyhounds for the control of estrus. The administration of oral testosterone shall be permitted provided it is validly prescribed and properly labeled. Veterinarians that administer injectable or oral testosterone shall be responsible for maintaining security, inventory, and a retrievable records/log in accordance with the Drug Enforcement Agency (DEA) regulations pertaining to a Schedule III drug under the federal Controlled Substances Act and shall be accountable for all syringes and needles used therewith and their disposal in accordance with approved biomedical hazardous waste methods. Sulfa drug(s) is/are permitted to be administered to a racing greyhound providing: The racing greyhound is under the care of a veterinarian currently licensed pursuant to Chapters 474 and 550, Florida Statutes; and The sulfa drug(s) is/are prescribed by a veterinarian currently licensed pursuant to Chapters 474 and 550, Florida Statutes; and The sulfa drug(s) is/are not administered within 24 hours prior to the officially scheduled post time of the race. The following permitted medications shall not be reported by the racing laboratory to the division as a violation of Section 550.2415, F.S.: The detection of caffeine at a urinary concentration less than or equal to 200 nanograms per milliliter; The detection of theophylline and theobromine at a urinary concentration less than or equal to 400 nanograms per milliliter; The detection of procaine at a urinary concentration less than or equal to 2 micrograms per milliliter; and The detection of flunixin at a urinary concentration less than or equal to 250 nanograms per milliliter. All prescription medication, regardless of method of administration, shall be safeguarded under lock and key when not being actively administered. Rule 61D-6.012, titled “Penalty Guidelines for Class I-V Drug Violations in Greyhounds,” provides as follows: The penalties in this rule shall be imposed when the Division finds that the following substances have been identified by the state laboratory in a urine sample or blood sample collected from a greyhound participating in a pari-mutuel event: (a) Any drug or medication that: Is not approved for veterinary use in the United States by the Food and Drug Administration; Cannot be detected by the state laboratory in a urine or blood sample unless the medication was administered within 24 hours of the race; or Is detected in urine or blood concentrations that indicate a level of dosage that would constitute a threat to the health and safety of the greyhound. First violation of this chapter Any subsequent violation of this chapter $1,000 to $2,500 fine and suspension of license zero to one year, or revocation of license; $2,500 to $5,000 fine and revocation of license. The penalty for any medication or drug which is not described in subsection (1) above shall be based upon the classification of the medication or drug found in the Uniform Classification Guidelines for Foreign Substances, revised December 2014, as promulgated by the Association of Racing Commissioners International, Inc., which is hereby incorporated and adopted by reference, https://www.flrules.org/Gateway/ reference.asp?No=Ref-06400. A copy of this document may be obtained at www.myfloridalicense.com/dbpr/pmw or by contacting the Department of Business and Professional Regulation, 2601 Blair Stone Road, Tallahassee, Florida 32399. The penalty schedule shall be as follows: Class I substances: First violation of this chapter $500 to $1,000 fine and suspension of license zero to one year, or revocation of license; Any subsequent violation of this chapter $1,000 to $5,000 fine and suspension of license no less than one year, or revocation of license. Class II substances: First violation of this chapter $100 to $1,000 fine and suspension of license zero to 30 days; Second violation of this chapter $250 to $1,000 fine and suspension of license no less than 30 days, or revocation of license; Third violation or any subsequent violation of this chapter $500 to $1,000 fine and suspension of license no less than 60 days, or revocation of license. Class III substances: First violation of this chapter $50 to $500 fine; Second violation of this chapter Third violation or any subsequent violation of this chapter $150 to $750 fine and suspension of license zero to 30 days; $250 to $1,000 fine and suspension of license zero to 60 days. Class IV or V substances: First violation of this chapter $50 to $250 fine; Second violation of this chapter Third or subsequent violation of this chapter $100 to $500 fine; $200 to $1,000 fine and suspension of license zero to 30 days. The Division may consider mitigation or aggravation to deviate from these penalty guidelines. Circumstances which may be considered for the purposes of mitigation or aggravation of any penalty shall include the following: The impact of the offense to the integrity of the pari-mutuel industry. The danger to the public and/or racing animals. The number of repetitions of offenses. The time periods between offenses. The number of complaints filed against the licensee or permitholder, which have resulted in prior discipline. The length of time the licensee or permitholder has practiced. The deterrent effect of the penalty imposed. Any efforts at rehabilitation. Any other mitigating or aggravating circumstances. Absent mitigating circumstances, the division judge or the division shall order the return of any purse, prize, or award from any pari-mutuel event for redistribution when a postive test for a drug or medication described in paragraphs (1)(a), (1)(b), (1)(c), (2)(a), or (2)(b) is reported by the state laboratory and confirmed through the hearing process. The judges or the division shall specify in writing the reasons for requiring the return of any purse, prize, or award for redistribution when the positive test of a drug or medication reported by the state laboratory is not described in paragraphs (1)(a), (1)(b), (1)(c), (2)(a), or (2)(b) of this rule. Nothing in this rule modifies the provisions of Rule 61D-6.008 or 61D-3.002, F.A.C., or rules promulgated under Section 550.2415, F.S. Count II of the Petition alleges that the challenged rules arbitrarily and capriciously fail to address environmental contamination of racing greyhound urine samples. It also alleges that the rules deprive racing greyhound trainers of due process, are vague in that they fail to establish adequate standards for agency decisions, and vest unbridled discretion in the agency. Finally, it alleges that the rules exceed and contravene the Division’s delegated legislative authority. Petitioners point out that section 550.2415(1)(b) acknowledges the presence of “naturally occurring substances” and “environmental contaminants” in an animal. The statute authorizes the Division to adopt rules that specify “normal physiological concentrations” of naturally occurring substances and that specify acceptable levels of environmental contaminants. Petitioners also observe that section 550.2415(7)(c) requires the Division to adopt rules that include a classification system for “drugs and substances” and a corresponding penalty schedule for violations in accordance with the ARCI Guidelines. The Division is also required to adopt ARCI-approved “laboratory screening limits” for drugs and medications that are not classified as controlled therapeutic medications. Petitioners note that, despite the statutory language, rule 61D-6.007 provides screening limits for only a few foreign substances. The rule addresses permitted administrations of testosterone and sulfa drugs to racing greyhounds and provides screening limits for caffeine, theophylline, procaine, and flunixin. Petitioners contend that this list is inconsistent with the ARCI Medication Schedule, which lists 26 medications and their recommended screening limits for the urine samples of racing animals. Petitioners further note that rule 61D-6.012 establishes a penalty schedule that incorporates the ARCI Guidelines without regard to the amount of the substance found in the urine sample. The Division counters that its rule follows the ARCI Guidelines, which do not contain laboratory screening limits (or thresholds) for cocaine, BZE, or EME. Cocaine, BZE, and EME are also not identified within the ARCI Medication Schedule. The Division reads the exclusions of laboratory screening limits for cocaine as evidencing ARCI’s “zero tolerance policy” for the presence of cocaine and its metabolites in the race-day sample of a racing animal. Rule 61D-6.012 incorporates the ARCI Guidelines and therefore the same “zero tolerance policy” for the presence of cocaine, BZE, and EME that the Division presumes, both the ARCI Guidelines and ARCI Medication Schedule recommend. However, the only laboratory screening limits found in any of the ARCI materials are those related to the 26 “controlled therapeutic medications” listed in the ARCI Medication Schedule. The ARCI Guidelines list approximately 750 “drugs/substances” and contain screening limits for none of them. Thus, the Division’s point about “zero tolerance” for cocaine based on the ARCI documents could be made as to several hundred other drugs/substances, including several items for which the Division’s own rule 6D-6.007(3) establishes screening limits well above zero.6/ The ARCI Schedule recommends that cocaine, almost alone among Class 1 drugs,7/ be given a “Class B” penalty rather than the typical “Class A” penalty. The ARCI-recommended Class B penalty for a licensed trainer’s first offense is a minimum 15-day suspension and $500 fine, absent mitigating circumstances. The presence of aggravating factors can increase the penalty to a 60-day suspension and a fine of $1,000. In contrast, the ARCI-recommended Class A penalty for a first offense is a minimum one-year suspension and minimum fine of $10,000. Aggravating factors can increase the Class A penalty to a three-year suspension and a fine of $25,000. The lesser recommended penalty indicates that if ARCI has singled out cocaine, it has been for more lenient treatment, and not for harsher treatment than for other Class 1 drugs. Dr. Cynthia Cole is a veterinarian and pharmacologist, who acted as the director of the UF Lab from 2003 to 2006. Dr. Cole testified that BZE and EME are “naturally occurring substances,” in the strict sense that they are metabolites of cocaine and would be naturally produced by any animal that has ingested cocaine. Dr. Cole also conceded that levels of cocaine below 100 (ng/mL) would be very unlikely to have any effect on a racing animal’s performance, and that such low levels could be the result of environmental contamination. Of the 24 positive tests cited against Petitioners, the highest concentration of a cocaine metabolite was 36.5 ng/mL. Even that appeared to be an outlier, as most of the concentrations were in the range of 10 to 15 ng/mL. Dr. Thomas Tobin, a veterinarian, pharmacologist, and toxicologist, testified that trace amounts of cocaine are present virtually everywhere in North American human society. Dr. Tobin stated that less than 50 ng/mL of urinary BZE is indicative of nothing more than that the subject lives in North America. Dr. Tobin testified that a very small concentration of cocaine metabolites in the urine is likely attributable to environmental contamination. Dr. Tobin stated that when the concentration is below pharmacological significance, it should not be called a positive. He noted that in human drug testing, a sample is first screened at 150 ng/mL and then confirmed at 100 ng/mL, at which point it is reported as positive. Dr. Tobin could think of no scientific reason why there should be a regulatory reporting threshold for humans but not for racing animals. Cocaine is rapidly absorbed and metabolized, and may enter a dog’s body through the mouth, the mucous membranes, or through the skin. Dr. Tobin opined that the very small concentrations of cocaine metabolites found in Petitioners’ greyhounds suggest exposure to the drug via touch, soon before the urine sample was taken. He found this significant because of the manner in which urine is collected from racing greyhounds in Florida. Shortly before the first race begins for each 15-race card, greyhound trainers customarily arrive at the track detention facility with their greyhounds for weigh-in. The trainers then leave their greyhounds in the care of track personnel. Between weigh-in and the end of a greyhound's race, the dog has no physical contact with its trainer, while it has extensive contact with track personnel. After weigh-in, and approximately 30 minutes before the first race begins, track personnel identified as "lead- outs," take the greyhounds into a locked area called a "ginny pit." Track personnel supervise the dogs in this area; trainers and owners are not allowed to be present. The urine sampling of a racing greyhound takes place just prior to the greyhound's scheduled race. Depending on when a greyhound is scheduled to race, its urine may be sampled several hours after its last contact with its trainer. Veterinarian assistants employed by the Division catch racing greyhounds' urine during the sampling process. The Division does not drug-test its veterinarian assistants. David Tiffany is the quality assurance manager for the UF Lab. Mr. Tiffany testified in agreement with Ms. Wilding that the UF Lab’s current limit of quantification for cocaine, also called a “decision limit” or “cut-off,” is 10 ng/mL. Mr. Tiffany uses the term “cut-off” to describe the detection level at which the lab has informally decided not to expend the effort required to establish the quantity of a substance at a lower level. Mr. Tiffany stated that the UF Lab is able to detect cocaine down to 5 ng/mL, and that this “limit of detection”--the smallest concentration of a substance that can be confidently identified by a testing methodology--is one factor in determining the limit of quantification. He testified that several factors influence the ability to confidently see a drug all the way down to its limit of detection, including “noise” (other compounds) in the sample, and whether the testing instrument is in need of service and recalibration. Mr. Tiffany wrote the UF Lab’s procedures for determining measurement uncertainty. He explained that multiple measurements of an item yield small variations. The degree of that variation is the “precision of measurement.” The lab looks at various factors that affect the variation and sets a range of measurement uncertainty, i.e., the probability that the measurement for a certain substance will fall between an upper and a lower limit. Mr. Tiffany stated that the common level of a range is a 95-percent probability that the value of the sample is within the range. The standard format is to state the concentration of the substance, plus or minus the value of the range of measurement uncertainty. Mr. Tiffany testified that the UF Lab calculates and attaches to its report a measurement of uncertainty only when dealing with a “threshold drug,” meaning a drug for which a statute or rule sets an allowable level. For such drugs, the lab must be certain that the entire range of variation sits above the threshold. If the value of the measurement minus the measurement of uncertainty still exceeds the threshold, the lab calls it a positive finding. The UF Lab does not report a measurement of uncertainty for cocaine and its metabolites because no rule or statute sets a threshold for cocaine. Mr. Tiffany stated that a measurement of uncertainty is not needed to detect the mere presence of a substance, as opposed to making a precise measurement of the quantity of that substance. The lab can determine that something is present without giving it a number. Mr. Tiffany testified that the UF Lab used to simply report the qualitative results of its tests for cocaine, but that the Division then would ask whether there was a lot or a little cocaine in the sample. As an aid to the Division, the lab began reporting quantitative results for cocaine, with the proviso that the reported amounts were estimates. At some point, the lab began restricting its “positive” reports for cocaine metabolites to those results that met or exceeded the lab’s limit of quantification, 10 ng/mL. Ms. Wilding and Mr. Tiffany resisted calling this 10 ng/mL line a “threshold” because a “threshold” is an allowable level of a substance established by statute or rule. However, as a practical matter, the Division has allowed the limit of quantification for cocaine metabolites to act as a threshold for taking action against a licensee. If the Division’s policy were actually “zero tolerance,” it would require the UF Lab to report cocaine down to its limit of detection and would discipline licensees accordingly. In either event, the laboratory screening limit should be reflected in the Division’s rules, as required by section 550.2415(7)(c). It was never explained at the hearing how the UF Lab knows which drugs are “threshold” drugs for purposes of reporting positive results to the Division. The Division’s annual report includes a listing of positive drug tests for the previous fiscal year. Apart from cocaine and its metabolites, the drugs found in the positive drug tests for fiscal years 2014-2015 and 2015-2016 were: acepromazine metabolite; methylprednisolone; amphetamine; betamethasone; caffeine; theophylline; theobromine; clenbuterol; dexamethasone; methocarbamol; phenylbutazone; 5-hydroxy dantrolene; despropionyl fentanyl; xylazine; dextrorphan; dimethyl sulfoxide; firocoxib; flunixin; ketoprofen; glycopyrrolate; ibuprofen; isoflupredone; methylprednisolone; triamcinolone acetonide; ketoprofen; lidocaine; 3-hydroxy lidocaine; mepivacaine; 3-hydroxy mepivacaine; omeprazole sulfide; oxycodone; oxymorphone; procaine; testosterone; nandrolone; boldenone; carprofen; isoxsuprine; naproxen; and zipaterol. Apart from caffeine, theophylline, theobromine, procaine, and flunixin, the Division’s rules (and the record of this proceeding) are silent as to the laboratory screening limits for these drugs. There appear to be three possibilities: the Division informally provided the UF Lab with a screening limit for these drugs; the Division instructed the UF Lab to report positive tests down to the limit of detection, i.e., “zero tolerance,” for these drugs; or the UF Lab was allowed to set its own “screening limit” by way of its limit of quantification, as Mr. Tiffany testified has been done for cocaine. However, the Division offered no evidence in support of any of the possibilities. Mr. Tiffany testified that measurements of uncertainty vary between labs and can change within a single lab upon review of the methodologies and current equipment. Mr. Tiffany testified that there is no technical reason why the UF Lab could not report measurement uncertainties for BZE and EME if the Division requested that information. He believed that adopting the current UF Lab’s measurement of uncertainty in a Division rule would become a “false restriction on the data,” as it would become a limitation on the lab’s ability to lower the uncertainty measurement with new equipment and techniques.8/ Several jurisdictions have established screening limits for BZE in racehorses. New Mexico, Ohio, Illinois, and Oklahoma prohibit disciplinary action unless the test sample results exceed 150 ng/mL. The state of Washington has set the screening limit at 50 ng/mL. Illinois and Oklahoma refer to BZE under the heading “environmental contaminants.” New Mexico references BZE under the heading “environmental contaminants and substances of human use.” Washington lists BZE under the heading “environmental substances.” Petitioners contend that the Division has effectively delegated to the UF Lab the setting of a threshold or screening limit for cocaine and its metabolites. The UF Lab’s limit of quantification operates as the screening limit for disciplinary action taken by the Division, and is subject to change whenever the lab alters its equipment or methods. In support of their contention, Petitioners point out that in 2014, the UF Lab employed a more sensitive testing technology than it currently uses, which resulted in the prosecution of a greyhound trainer whose dog’s urine yielded only 3.7 ng/mL of BZE. Petitioners argue that this 2014 case demonstrates that the lab’s limit of quantification serves as a de facto substitute for the screening limits that section 550.2415(7)(c) requires the Division to adopt by rule.9/ The evidence fully supports Petitioners’ argument on this point. In summary, section 550.2415(7) places several mandatory rulemaking requirements on the Division. Paragraph (a) expressly directs the Division to adopt rules establishing the conditions of use and maximum concentrations of “medications, drugs, and naturally occurring substances” identified in the ARCI Medication Schedule, to ensure “the safety and welfare of racing animals.” “Controlled therapeutic medications” are limited to those medications and allowable concentrations as identified and approved by ARCI. The Division has not implemented this directive as to greyhounds. Rule 61D-6.007(3) prescribes allowable dosages for caffeine, theophylline, theobromine, procaine, and flunixin, of which only flunixin is listed in the ARCI Medication Schedule. The ARCI Medication Schedule lists dosage thresholds, withdrawal guidelines and dosing specifications for 26 “controlled therapeutic medications.” The ARCI Guidelines include caffeine (Drug Class 2, Penalty Class B), theophylline (Drug Class 3, Penalty Class B), theobromine (Drug Class 4, Penalty Class B), and procaine (Drug Class 3, Penalty Class B).10/ In its Proposed Final Order, the Division argues, for the first time, that the ARCI Medication Schedule does not apply to greyhounds at all. It concedes that section 550.2415(7)(a) mandates the adoption of rules establishing thresholds for medications, drugs, and naturally occurring substances identified in the ARCI Medication Schedule, but argues that this provision applies only to racehorses. The Division has adopted rule 61D-6.008, applying the ARCI Medication Schedule to horses, but has not done so for greyhounds.11/ The Division’s assertion is not supported by the statute. In fact, section 550.2415(7)(a) is not limited to horses but expressly states that it applies to “racing animals.” The only textual support of any kind the Division offers is the assertion that the full title of the ARCI Medication Schedule is “ARCI Controlled Therapeutic Medication Schedule for Horses-- Version 2.1.” The copy of the ARCI Medication Schedule entered into evidence in this proceeding does not contain the words “for Horses,” or any language excluding greyhounds. Even if the ARCI Medication Schedule were limited to horses, the same point could be made as to the ARCI Guidelines, the classification definitions of which describe the impact of the listed drugs on “the racing horse.” The Division makes much of the fact that the word “greyhound” does not even appear in the ARCI Medication Schedule; neither does the word occur in the ARCI Guidelines. The record evidence in no way supports the Division’s contention that the statute’s provisions as to the ARCI Medication Schedule are inapplicable to greyhounds. Section 550.2415(7)(b) expressly directs the Division to adopt rules that designate the appropriate biological specimens for testing and that “determine the testing methodologies, including measurement uncertainties, for screening such specimens” for medications, drugs, and naturally occurring substances. (emphasis added). The Division has not implemented this directive. As set forth in the above Findings of Fact, the Division has left it to the UF Lab to establish measurement uncertainties. The UF Lab determines measurement uncertainties only for threshold substances, and these measurement uncertainties change over time. While the Division offered a cogent and reasonable explanation as to why it makes sense for the UF Lab to set measurement uncertainties, the statute does not give the Division discretion to entirely delegate this responsibility to another entity. The Division’s rules must determine the testing methodologies, including measurement uncertainties, not hand off that determination to a laboratory. The Division’s rules must make this determination for all “medications, drugs, and naturally occurring substances” that are screened by the lab, not only those substances it and/or the UF Lab deem “threshold” substances.12/ Section 550.2415(7)(c) expressly directs the Division to adopt rules that include a classification system for “drugs and substances” and a corresponding penalty schedule for violations. The classification system and penalty schedules must incorporate the ARCI Guidelines. The Division has implemented this requirement in rule 61D-6.012(2), which expressly adopts the classifications of the ARCI Guidelines and sets forth penalties based on the ARCI classifications. However, section 550.2415(7)(c) also expressly directs the Division to adopt rules that include laboratory screening limits approved by ARCI for drugs and medications that are not included in ARCI’s Medication Schedule as “controlled therapeutic medications.” The statute states that the presence of such drugs and medications in a sample “may result in a violation of this section.” The Division has not implemented this requirement. The ARCI Guidelines do not approve laboratory screening limits for drugs and medications other than “controlled therapeutic medications.” The Division has argued that the lack of screening limits for cocaine and its metabolites is evidence that ARCI supports a “zero tolerance” policy for cocaine. However, the same argument would apply to any of several hundred substances listed in the ARCI Guidelines that are not also listed as “controlled therapeutic medications” in the ARCI Medication Schedule. The Division has offered no principled distinction between cocaine and, for example, caffeine. Caffeine also appears in the ARCI Guidelines, with the same recommended penalty as cocaine. The ARCI Guidelines prescribe no screening limit for caffeine. Caffeine is not a controlled therapeutic medication. By the Division’s stated rationale, caffeine should be a “zero tolerance” substance. However, rule 61D-6.007(3)(a) allows up to 200 ng/mL of caffeine in the urine before the lab must report the finding to the Division. It could be objected that caffeine is merely a Class 2 drug, unlike cocaine, which is Class 1 and has no generally accepted medical use in racing animals. However, rule 61D- 6.012(2) provides penalties for substances all the way down to Class 5. If there were a “zero tolerance” policy for caffeine, a prosecution for a Class 2 substance violation could result in a $1,000 fine and a 30-day suspension. Fla. Admin. Code R. 61D- 6.012(2)(b). The point remains that neither the Division’s rule nor the Division’s arguments at hearing articulate a principled distinction as to which substances the Division will, in practice,13/ treat with a “zero tolerance” policy. The literal terms of the laboratory screening limits portion of section 550.2415(7)(c) require the Division to obtain ARCI’s approval of a list of laboratory screening limits for drugs and medications that are not included as controlled therapeutic medications. Despite the mandatory language of the statute, nothing in the record suggests that the Division has made any effort to implement this provision, either by submitting a list to ARCI or even by making an inquiry to ARCI as to whether it would consider such a submission. Rather, the Division has passively chosen to interpret the lack of ARCI- approved laboratory screening limits as endorsing a “zero tolerance” policy for all ARCI Guideline substances not included in the ARCI Medication Schedule. It is patently arbitrary for the Division to use the lack of screening limits as an opportunity to pick cocaine from among 700-plus substances in the ARCI Guidelines for “zero tolerance” treatment. Some distinguishing principle must be articulated to separate cocaine from the other substances in the ARCI Guidelines, given the lack of evidence that the Division in fact treats all drugs and substances that are not on the ARCI Medication Schedule with a “zero tolerance” policy. The Division could eliminate this ambiguity by following its statutory directive to adopt a rule setting laboratory screening limits for drugs and medications that are not included as controlled therapeutic medications. Section 550.2415(1) includes some permissive rulemaking actions that the Division may choose to take. Paragraph (1)(b) provides that the Division may solicit input from the Department of Agriculture and Consumer Services and may adopt rules that specify “normal physiological concentrations of naturally occurring substances in the natural untreated animal.” The Division also may adopt rules that specify acceptable levels of environmental contaminants and trace levels of substances in test samples. Several other states have chosen to treat BZE as an environmental contaminant and to set acceptable concentration levels for the drug in the system of a racing animal. This practice appears sensible and consistent with the accepted science, but the statute does not require the Division to follow it. However, the Division fails to adopt rules at its own enforcement peril.14/ In its Proposed Final Order, the Division uses paragraph (1)(b) to defend its failure to adopt thresholds for cocaine and its metabolites, arguing that the statute is permissive as to adopting rules that establish screening limits for environmental contaminants such as cocaine. Throughout the hearing, the Division resisted the notion that BZE or EME are environmental contaminants, and thus its late embrace of that categorization is somewhat disingenuous. In any event, the Division fails to read paragraph (1)(b) in its entirety. The first sentence provides: “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.” To find a violation, the Division must first determine what level of a naturally occurring substance is excessive. Due process for the licensee requires no less. The Division fails to explain how it can enforce the quoted prohibition without a rule that specifies “acceptable levels of environmental contaminants and trace levels of substances in test samples.” However, the permissive language of the statute gives the Division discretion to avoid such an explanation until it attempts to enforce the prohibition. A rule is not required. Finally, the Division attempts to justify its failure to establish screening limits by reference to section 550.2415(13), which provides: The division may implement by rule medication levels for racing greyhounds recommended by the University of Florida College of Veterinary Medicine developed pursuant to an agreement between the Division of Pari-mutuel Wagering and the University of Florida College of Veterinary Medicine. The University of Florida College of Veterinary Medicine may provide written notification to the division that it has completed research or review on a particular drug pursuant to the agreement and when the College of Veterinary Medicine has completed a final report of its findings, conclusions, and recommendations to the division. The Division argues that subsection (13) means that any medication levels adopted in the Division’s rules must be based on a recommendation from the UF Lab, and that the UF Lab has not recommended a threshold for cocaine or its metabolites. The Division argues that it would be an invalid exercise of delegated legislative authority to adopt any threshold for racing greyhounds without a recommendation from the UF Lab. This argument is not well taken. Subsection (13) does not refer narrowly to the UF Lab but to the University of Florida College of Veterinary Medicine (“College”). The statute contemplates a contract between the Division and the College under which the College would use its medical knowledge to recommend “medication levels for racing greyhounds.” There is at least an implication that a medical opinion beyond the laboratory testing expertise of the UF Lab is contemplated. Also, subsection (13) is entirely permissive. It allows the Division to implement by rule medication levels recommended by the College, should the Division and the College choose to enter into a contract for that purpose. If the Division’s argument were accepted, then it could evade any responsibility for adopting rules by the simple expedient of never entering a contract with the College. In fact, nothing in the language of subsection (13) exempts the Division from the mandatory rulemaking requirements of subsection (7).
Findings Of Fact Business History. Petitioner is the sole owner of Sentry Dogs, Inc., a Florida corporation, having its principal place of business at 7120 Cheney Highway, Orlando, Florida. Sentry Dogs, Inc. does business as K-9 of Orlando, a fictitious name. Petitioner originally acquired Sentry Dogs, Inc. by purchase in 1968 of the corporation's outstanding stock which was placed in escrow pending full payment of the purchase price. The obligation was discharged in 1970 and the stock was released from escrow to the Petitioner, at which time he became the sole owner of Sentry Dogs, Inc. In April, 1970 on behalf of the corporation Petitioner applied for a Certificate of Registration from the State of Florida, Department of Revenue, and was issued such a Certificate under sales tax number 58002626799. (Exhibit 1-1) Sales Tax Deficiencies. On April 14, 1976 the State of Florida, Department of Revenue, advised Petitioner that an audit of K-9 of Orlando was to be undertaken. (Exhibit 1-7) Such an audit was thereafter undertaken by the State of Florida, Department of Revenue, and the audit covered the period from April 1, 1973 through March 31, 1976. As a result of said audit, a first notice of assessment, dated April 29, 1976 was issued to Petitioner by the State of Florida, Department of Revenue. (Exhibit 1-8) Petitioner then requested and was granted an informal conference with the State of Florida, Department of Revenue, with respect to said first notice of assessment, after which a revised notice of assessment dated November 22, 1976 was issued. (Exhibit 1-9) An amended revised notice of assessment, dated June 2, 1977, was issued to Petitioner alleging a proposed deficiency of the Florida sales taxes, including penalties and interest in the total amount of $6,320.96 after further documentation was provided by Petitioner. (Exhibit 1-10) On July 8, 1977 Petitioner filed a Petition with the State of Florida, Department of Revenue, requesting that a formal proceeding be instituted in connection with the amended revised notice of proposed assessment dated June 2, 1977. With respect to said amended notice of proposed assessment, dated June 2, 1977, Petitioner alleged that the sale by Petitioner of dual personality command dogs is not subject to sales taxes and further alleges that a reasonable portion of the payments made by Petitioner under a lease Agreement dated November 18, 1971 are option payments and not subject to the imposition of a commercial rent tax. Business Activities Conducted by Petitioner. Petitioner engages in four types of business activities involving dogs: The obedience training of dogs brought to it by specific customers who own the dogs; The maintenance of boarding facilities for short term care and feeding of dogs owned by others; Bathing and dipping of dogs; The training and leasing of guard dogs; and The sale of dual personality command dogs. Sale of Dual personality Command Dogs. Under normal circumstances the following actions occur in the sale of dual personality command dogs. A prospective customer of Petitioner orders a dual personality command dog. Such order is made on a written purchase order (Composite Exhibit 1-5) which includes among other things the date the order is placed, the amount of the order, the deposit to be made, the type of dog, the color, the sex, and the type of behavior the dog is to have (i.e., housebroken -- must not jump fences, as well as the dual personality of basic obedience and family protection). At the time of signing said purchase order the customer either pays the full purchase price or places a deposit which is generally one-half of the total purchase price. Petitioner then acquires a "raw" dog to be sold in accordance with the purchase order. Petitioner acquires approximately ninety-percent (90 percent) of all dogs to be sold by donation with the donor executing a specific donation form (Petitioner's Exhibit 2). The balance of the dogs acquired by Petitioner for sale are by purchase from the general public. The average purchase price of the animals is between $25.00 and $75.00 each. Under the purchase order a customer is given 5 days to cancel the order and any cancellation after such period results in any deposit to Petitioner being forfeited. Upon obtaining the "raw" dog, Petitioner undertakes the following steps in the training of such animal as a dual personality command dog: An evaluation is initially made by Petitioner to determine whether the dog acquired is suitable for training as a dual personality command dog. If it is determined it is not, then it is designated for training as a guard dog. Such evaluation takes from 3 to 7 days. Petitioner then undertakes the basic training of the dual personality dog which involves the training of the dog to heel, sit, stay, down and come. Such basic training also involves getting use to the leash and obeying verbal commands and hand signals and finally to work off the leash with commands. Such training requires the services of 2 to 4 trainers and takes approximately three weeks with specific training undertaken 6 to 8 times daily. The next state of the training process involves protection training in three specific categories -- personal protection, car protection and property protection. The animal is taught to be aggressive by training the dog to respond to a specific command which changes its personality. In addition, it is taught to be aggressive only upon command and not to be aggressive even when an attempt is made to provoke the dog without a command being given. The total training time by Petitioner of a dual personality command dog is approximately 8 to 12 weeks. The training is undertaken solely by Petitioner, but with the sole purpose of fulfilling the order of the customer for a particular dog without any direction from or advice by the customer and the Petitioner advises the customer of this. The training involves an understanding of the dog's psychology and its heredity and knowledge of socialization techniques in order for it to be trained successfully as a dual personality command dog. After completion of the training period as a dual personality command dog, it is then taken by Petitioner to a veterinarian who examines it and gives it the necessary shots. If at any time during the training process, the dog being trained dies, the Petitioner simply obtains another "raw" dog in an effort to fulfill the customers order, and begins the training of that dog. Likewise, the liability and responsibility for the actions of the dog from the time it is obtained to fill an order until the customer signs the Bill of Sale and takes physical possession of the dog is solely the Petitioner's. The dog is thereafter delivered to and picked up by the customer who signs a Bill of Sale (Exhibit 1-6) which indicates that the transaction is final and the customer is accepting the full ownership as of the date the Bill of Sale is signed. At the same time, Petitioner prepares a record of the dog which has been trained for the customer and confers with the customer with respect to how the dog is to be handled. The customer keeps the dog for a period of between 7 to 14 days. The customer then returns to Petitioner and is taught how to handle the dog by a professional trainer of Petitioner. The Petitioner will replace a dog for a customer, after execution of the Bill of Sale and possession by the customer, if it is finally determined that the customer can either not handle the dog or there is a personality conflict between the owner and the dog. Such replacement is made by Petitioner at no additional cost. The average purchase price during the audit period of a dual personality command dog sold by Petitioner was approximately $500.00. Of this amount Petitioner's cost was approximately $200.00 for obedience training and the balance was attributable to the cost in acquiring the dog originally if any, and the cost for the care and maintenance of the dog during the training period. A dog trained as a dual personality command dog requires a refresher course approximately every 6 to 8 months. Petitioner provides such refresher course to its customers and to other animals not originally sold by Petitioner for a price averaging between $85.00 and 125.00. Treatment of Payments made under Lease Agreement of November 18, 1971. Petitioner's business is currently operated on premises known as 7120 Old Cheney Highway, Orlando, Florida. Petitioner originally leased a portion of said property from Fred Ballard during 1968 or 1969. The initial rental payments for such premises was $75.00 and there was no written lease agreement. After 1969 and prior to 1971, Petitioner leased additional property adjacent to the original leased premises from Fred Ballard. Such premises had situated thereon a home which Petitioner thereafter used as an office. Total rental payments after the additional rental was approximately $175.00 a month. There was no written lease agreement. During 1971, a kennel adjacent to the premises and owned bay Fred Ballard leased by Petitioner was destroyed by fire. Petitioner offered to rebuild and to rent the premises upon which the destroyed kennels were located. Mr. Ballard in connection with such adjacent premises offered to Petitioner three (3) propositions relative to such adjacent premises and the other property already leased by Petitioner: Petitioner could rent such adjacent premises outright and the rent would be something less than $695.00 per month; Petitioner could purchase the adjacent property for a down payment of $30,000.00; or Petitioner could rent the adjacent property with a portion of each monthly payment due being charged against an option to purchase the property by Petitioner during the term of the prospective lease agreement. Petitioner and Mr. Ballard agreed that a portion of each monthly payment to be paid by Petitioner to Mr. Ballard covering the property originally leased under oral agreement and the property to be acquired from Mr. Ballard adjacent to the same would be applied to the option to purchase if Petitioner were to exercise the option to purchase with respect to the leased property. Said option was exercisable for a period of eight (8) years. However, prior to the exercise of the option contained in the lease agreement all payments received under the lease agreement by Mr. Ballard from Mr. Galley were specifically understood and considered rent not subject to any forfeiture in the event of default or termination of the lease agreement. Mr. Ballard then either prepared or had prepared outside the State of Florida, a lease agreement providing for the rental of Petitioner's business premises located at 7120 Old Cheney Highway, Orlando, Florida, which included the property to be leased as discussed above in 5. In addition the lease agreement under Paragraph 2 contained an option under which the Petitioner could elect to purchase all of the leased premises for a total purchase price of $75,000.00 with credit being given against the purchase price upon exercise of the option for "rentals paid hereunder less interest computed at 7 1/2 percent per annum upon the foresaid purchase price." The balance of the purchase price, if any, after electing the option would be paid by a $45,000.00 mortgage and cash upon closing. At the time Petitioner was provided with the lease agreement he was also provided by Mr. Ballard with an amortization schedule (Petitioner's Exhibit 1) which indicated a breakdown of the allocation of monthly payments toward the amount to be credited toward the purchase price of the property if the option were elected over the eight (8) year period, less the 7 1/2 percent interest factor. The lease agreement was entered into between Petitioner and his wife, Ardys Rae Gailey, as lessees, and Fred B. Ballard and Betty A. Ballard, his wife, on November 18, 1971. (Exhibit 1-2) Though Petitioner entered in said lease agreement he has made the rental payment through his corporation Sentry Dogs, Inc., d/b/a K-9 of Orlando, and since entering into the lease agreement (Exhibit 1-2) the Petitioner has paid $695.27 monthly rent, as provided in paragraph (1) of the lease. On the profit and loss statements of K-9 of Orlando for the audit period involved, all payments made under the lease agreement of November 18, 1971 are reflected as "rent" payments. (Exhibits 1-11 and 1-12) There are no other subsequently written documents or agreements with respect to the lease of said premises by Petitioner nor has Petitioner elected to exercise the option and purchase the demised premises under the lease agreement.
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)?
Findings Of Fact Between May 24, 2005 and June 18, 2005, Respondent held a Pari-Mutuel Wagering Occupational License, number 1102016- 1021, issued by Petitioner. On May 25, 2005, Respondent was the trainer of record of a racing greyhound named "Lips Are Sealed." 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. 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." 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. 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. On June 1, 2005, Respondent was the trainer of record of a racing greyhound named "Red Eyed Fever." 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. 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." 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. 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. On June 16, 2005, Respondent was the trainer of record of a racing greyhound named "Stubborn Kind." On June 16, 2005, "Stubborn Kind" was entered, and finished first (1st), in the first (1st) race of the performance at Pensacola Greyhound Track. 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." 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. 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. On June 17, 2005, Respondent was the trainer of record of a racing greyhound named "Drinktil Hescute." On June 17, 2005, "Drinktil Hescute" was entered, and finished first (1st), in the fifth (5th) race of the performance at Pensacola Greyhound Track. 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." 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. 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.
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
The Issue Whether Respondents discriminated and retaliated against Petitioner because of her disability, in violation of the Florida Fair Housing Act; and, if so, the relief to which Petitioner is entitled. More specifically, the issues raised in this case are (1) whether Petitioner’s dog was a “service animal” pursuant to section 413.08, Florida Statutes (2018)1/; (2) whether Respondents took adverse action against Petitioner because of her disability; and (3) whether Respondents retaliated against Petitioner by not renewing her lease after she filed a housing discrimination complaint.
Findings Of Fact The parties stipulated at the final hearing that Petitioner suffers from anxiety and neck issues; and she qualifies as a person who is disabled for the purposes of the Florida FHA. Parties and Property Respondent Pelican Bay is a residential community owned and operated by Sun Homes. Respondent Cheryl Merrifield is the manager of Pelican Bay and an employee of Sun Homes. On June 24, 2016, Petitioner entered into a Manufactured Home Option to Purchase Agreement with Sun Homes (Agreement). The Agreement gave Petitioner a two-year period to lease the manufactured home located on Lot 56 of the Pelican Bay residential community. The Agreement allows the purchase of the home, but not the Lot in Pelican Bay. The Agreement contained a “rent to own” component which also allowed Petitioner to be credited 50% of her first year’s lease payments, and 25% of her second year’s lease payments towards the purchase of the manufactured home. Under the terms of the Agreement, after the first two years, the Petitioner would not accrue any credits toward the purchase of the home. The Agreement clearly anticipated that if Petitioner was to exercise the option to purchase, she would do so within two years. The Agreement refers to separate “Home Lease” and “Site Lease” agreements, but neither was admitted into evidence. Petitioner moved into the property in July 2016 with her five-pound Chihuahua, Buttons. At the time she moved into Pelican Bay, Petitioner informed Respondents she suffered from anxiety and needed Buttons for psychological and emotional support. As a result Pelican Bay waived the pet deposit and fees for Button. Petitioner claims she was discriminated against because she had a service dog and cites the following incidents: (1) in July 2016, she was prohibited from bringing Buttons into the Pelican Bay Clubhouse (Clubhouse) during a Fourth of July neighborhood party; (2) in November 2016, she was told that Buttons could not be in the kitchen or on the furniture in the Clubhouse and must be on a leash and controlled at all times during a Thanksgiving event; and (3) she was harassed by her neighbors and Pelican Bay staff for having the dog in the pool area. Petitioner also alleges she was retaliated against for filing a housing discrimination complaint when Pelican Bay did not renew her lease in July 2018. Respondents dispute Petitioner’s version of the facts and deny that their actions were discriminatory. Buttons As an initial matter, there is a factual dispute as to whether Buttons is a “service animal” for the purposes of the Florida FHA. Although it is unclear when Buttons became her service animal, Petitioner had Buttons as a pet prior to being prescribed a service animal for her anxiety by her psychologist, Dr. Donna Marks. Dr. Marks is certified in addiction therapy, psychoanalysis, and Gestalt psychology. She has no training in orthopedics or treating back and neck injuries. Dr. Marks has been treating Petitioner for anxiety intermittently since 2009. In 2014, Petitioner began regular twice a week therapy sessions with Dr. Marks. Thereafter, Dr. Marks prescribed a “psychological service animal” for Petitioner’s anxiety disorder. In a letter dated January 21, 2016, to allow Buttons to ride on an airplane, Dr. Marks wrote: Ms. Taylor has been seen by me and I am familiar with her history and with function limitations and needs imposed by an anxiety order. In order to help alleviate these difficulties and to enhance her ability to function independently, I have prescribed Ms. Taylor to obtain a psychological service animal. The presence of this animal is necessary for her emotional health because it will mitigate the symptoms she experiences and a preferable alterative to medication. (emphasis added). Later, after Petitioner moved into Pelican Bay, Dr. Marks changed her prescription for Petitioner from a “psychological service animal” to a “service animal.” Although no written prescription of this change was admitted into evidence, Dr. Marks claimed she made this change due to Petitioner’s neck and back surgeries. On cross-examination, however, Dr. Marks admitted she altered the prescription for Petitioner’s convenience. Petitioner had reported to her that she was having difficulty at Pelican Bay and was not allowed to take Buttons to neighborhood events. Dr. Marks felt a “service animal” would have more access than an “emotional support animal.” When asked what service Buttons provides or tasks Buttons performs for Petitioner, both Petitioner and Dr. Marks testified Buttons calms Petitioner and keeps her from becoming anxious. In addition, Petitioner testified she has difficulty turning her neck and needs Buttons to warn Petitioner when people are approaching and warn people not to come to close to her. Buttons does this by barking. Buttons did not go through any professional training to learn to keep Petitioner calm or how to bark. Dr. Marks was not involved in training Buttons, made no recommendations on how Buttons should be trained, and did not know of a training protocol for teaching animals anxiety-reducing techniques or conduct. Petitioner claimed she trained Buttons by giving it treats when it behaved the way she wanted, but admits she did not follow any specialized training program. Buttons is registered with the United States Animal Registry (USAR) as an “Emotional Support Dog” and a “Service Dog.” Based on her USAR identification and letters from Dr. Marks, Buttons has been allowed to accompany Petitioner at restaurants, the hospital, and on airplanes. Petitioner, however, provided no evidence of the requirements for registering Buttons with the USAR registry. For example, there was no evidence of an USAR application or questionnaire; nor was there evidence Buttons had been evaluated or tested by USAR as part of the registration process.3/ As explained below, the undersigned finds Buttons is not a “service dog” for purposes of the Florida FHA. Fourth of July In early July 2016, a Fourth of July potluck celebration was held in the Clubhouse. When Petitioner arrived at the Clubhouse with her potluck contribution she was told by Reni Thompson that she could not bring Buttons into the area where the food was being served. Upon hearing this, Petitioner immediately left the Clubhouse and did not participate in the event. The uncontroverted evidence established the celebration was not sponsored by Pelican Bay, nor was staff in attendance. Instead it was arranged by the Pelican Bay Home Owner’s Association (HOA). Although Petitioner testified Ms. Thompson told her she was an HOA board member, Ms. Merrifield testified Ms. Thompson was not on the HOA board, nor was Ms. Thompson a Pelican Bay employee. Other than Petitioner’s hearsay there is no evidence that Ms. Thompson was a board member. Moreover, the HOA was not affiliated with or managed by Pelican Bay, nor were its board members employees of Pelican Bay. As such, any conduct by Ms. Thompson cannot be imputed onto Pelican Bay. Regardless, when Ms. Merrifield received Petitioner’s complaint about what had occurred at the Fourth of July incident, she immediately arranged a meeting with Petitioner. Ms. Merrifield also met separately with Ms. Thompson to inform Ms. Thompson that Petitioner should be allowed in the Clubhouse with Buttons. The undersigned finds Respondents are not liable for Ms. Thompson’s conduct, and took corrective measures once it learned of the incident. Thanksgiving Restrictions on Buttons On November 1, 2017, Ms. Merrifield sent an email titled “Thanksgiving Dinner Nov. 23” to the residents of Pelican Bay. That email stated as follows: Attached to this email is what Sandy Weidner is posting in the Clubhouse today. If anyone is interested please go and sign up. She also has a list of what will be needed if anyone wants to help with the side dishes. The email then listed the side dishes that were needed and contact information for Sandy Weidner for any questions. The evidence established the event was not sponsored by Pelican Bay (although it was contributing the turkey) and Ms. Weidner was not a Pelican Bay employee. Instead of contacting Ms. Weidner, Petitioner emailed Ms. Merrifield and asked, Cheryl, Is this an Event that Buttons, “My Service Dog” and I will be welcomed to without anyone rejecting us or harassment?” Ms. Merrifield replied, In response to your request we understand your dog is an emotional support animal. It may be with you in the clubhouse. It may not go in the kitchen, it may not be put on furniture. It must be on a leash and controlled at all times. It is unclear whether this response deterred Petitioner from attending the Thanksgiving event. Nonetheless, the undersigned finds Ms. Merrifield’s actions did not constitute a violation of the Florida FHA. Pool Incidents In July 2017, Pelican Bay staff received a complaint from residents that Buttons was in the community pool, in violation of the community pool rules. Later, Ms. Merrifield spoke to Petitioner who admitted she had taken Buttons in the pool. Ms. Merrifield told Petitioner Buttons was not allowed inside the pool and should not be left in the pool area unrestrained. Petitioner later researched the issue and agreed she would not take Buttons in the pool in the future. In August 2017, Josephine Hillier, a Sun Homes employee, received another complaint from residents that Buttons was in the pool. When Ms. Hillier investigated the complaint she did not see the dog in the pool, but did find Petitioner with Buttons in the pool area. At the time, Petitioner denied Buttons was in the pool and claimed Ms. Hillier’s questioning was harassment in violation of housing discrimination laws. At the hearing, Petitioner testified that after researching and learning Buttons could not be in the pool, she continued to sit in the pool with Buttons on her shoulder. Petitioner did not consider this to be a violation of the pool rules as long as Buttons was not in the water. She also allowed Buttons to sit on the pool furniture unrestrained while she was in the pool, because her veterinarian told her Buttons was too small for a leash. Regardless, Pelican Bay took no further action against Petitioner regarding Buttons being in the pool. Petitioner complains Respondents repeatedly questioned her about Buttons being in the pool. Ms. Merrifield testified she was aware of two complaints of Petitioner letting Buttons in the pool; Ms. Hillier testified she was aware of two complaints about Buttons being in the pool, one of which she investigated. The undersigned finds that although Petitioner may have been approached by residents with complaints about Buttons, Respondents only spoke with her about Buttons being in the pool twice. The undersigned finds Pelican Bay’s conduct in questioning Petitioner about Buttons being in the pool, and warning her Buttons must be restrained did not constitute harassment. As explained below, this was justified under the circumstances. Non-Renewal of Purchase Agreement On March 20, 2018, Sun Homes sent an unsigned form letter to Petitioner stating her lease would not be renewed and that she would be required to vacate the property on or before June 30, 2018. Petitioner believes she received this letter because she filed a complaint of housing discrimination. The Agreement allowing the option to purchase the home anticipates a lease period of two years, although a longer period is not prohibited. Respondents asked Petitioner after the first year if she was planning to exercise her option to buy the home. At that time, June 2017, she declined because she felt it was too expensive and did not make financial sense. Petitioner did not take any steps toward exercising her option to purchase the home at the end of the second year because she was recovering from neck and back surgeries, her son was living with her, and she was not financially able to purchase it. Ms. Merrifield testified that it was common business practice to not allow renters to remain in Pelican Bay for more than two years. Sun Homes’ business model was to sell the manufactured homes; it was not interested in long-term rental relationships. The evidence established Petitioner was not the only resident that received the form non-renewal letter. The renters in the homes on Lot 48 and Lot 30 also received similar letters. Ms. Merrifield was unaware of whether these other residents had disabilities, but neither had made any kind of housing complaints. Based on the evidence and testimony presented at the final hearing, Petitioner did not demonstrate, by a preponderance of the evidence, that Respondents discriminated against her based on her disability or retaliated in violation of the FHA.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order finding that Respondents, Pelican Bay Communities, LLC, and Cheryl Merrifield, did not commit a discriminatory housing practice against Petitioner, Paula C. Taylor, and dismiss her Petition for Relief. DONE AND ENTERED this 14th day of November, 2018, in Tallahassee, Leon County, Florida. S HETAL DESAI Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of November, 2018.
The Issue The issue in this proceeding is whether the Petitioner meets the qualifications for licensure as assistant general manager at Seminole Greyhound Park. The Respondent contends that Petitioner does not meet these qualifications because while serving in the past as general manager at Seminole Greyhound Park, Petitioner violated the Respondent's rules by consorting with a convicted bookmaker, by allowing an unapproved veterinarian to serve as the approved track veterinarian, by conducting an excessive number of "T" races, by failing to comply with requirements for disbursement of funds to the Board of Regents, and by placing illegal wagers on National Football League games. Petitioner denies these allegations.
Findings Of Fact The Division of Pari-Mutuel Wagering is responsible for administering provisions of Florida Statutes relating to operation of dog racing establishments. Chapter 550, Florida Statutes. Respondent is specifically charged with responsibility for issuing or denying licenses to all persons connected with dog racing establishments for each specified job. Section 550.10, Florida Statutes. The Petitioner has been licensed in various capacities in the pari- mutuel industry in Florida since approximately 1956. He has served at greyhound racing facilities as a mutuel clerk, in the "money room," as racing secretary, racing judge, and most recently, as a track manager. In October, 1980, Petitioner entered into a five-year employment contract with Seminole Greyhound Park, Inc., to serve as its general manager. Petitioner served in that capacity during the time that the track was physically converted from a harness racing track to a dog racing track. He also served in that capacity during the first greyhound racing season at Seminole Greyhound Park, which began on May 4, 1981, and continued until August 30, 1981. Petitioner was issued a three-year license by the Respondent to serve as general manager commencing in 1981. He nonetheless would need to be certified by Respondent to serve for the 1982 racing season. The owners of Seminole Park desire to continue to employ the Petitioner as general manager. The owners were advised by the Respondent's personnel, however, that Petitioner would not be approved for licensure as general manager at the park for the 1982 season. No formal application to employ Petitioner in that capacity was submitted to the Respondent. Instead, in an effort to accommodate the Petitioner's employment contract, and the desires of the Respondent's personnel, the Seminole Greyhound Park owners sought to employ the Petitioner as assistant manager for the 1982 season, at the same salary and with the same benefits as had been specified in Petitioner's employment contract. Accordingly, Petitioner submitted an application to the Respondent for licensure as assistant manager at Seminole Greyhound Park. The Respondent denied the application by letter dated May 10, 1982. This proceeding ensued. As general manager at Seminole Greyhound Park, Petitioner was basically responsible for the day-to-day operation of the park. Prior to 1981, the park had been operated as a harness racing facility. The park was being converted into a greyhound racing establishment. Petitioner played a significant role in the conversion. He shared managerial responsibilities with John Fountain, an individual who was employed by the owners of Seminole Greyhound Park as special projects manager. Petitioner also shared responsibilities with Paul Dervaes, the President of Seminole Greyhound Park, who also owned an interest in the park; and with Bill Demetree, one of the primary owners of the park. During the conversion period, Petitioner was basically responsible for organizing the track, setting up concessions, booking kennels and the like. When the track opened in early May, 1981, Petitioner continued to share managerial responsibilities with Bill Demetree and Paul Dervaes. Dervaes resigned as president of Seminole Greyhound Park in late May, and through the remainder of the racing season, Petitioner shared managerial responsibilities primarily with Bill Demetree. Operational employees at Seminole Greyhound Park, including the racing secretary, and persons in charge of security, concessions, and publicity answered directly to the Petitioner. John Fountain is an individual who was convicted of a violation of federal bookmaking laws. Fountain's civil rights were restored to him in Florida through a "Certificate of Restoration of Civil Rights" issued by the State Office of Executive Clemency on May 14, 1980. Fountain was primarily responsible for interesting Bill and Jack Demetree, two brothers who are involved in various business enterprises, in purchasing the facilities at Seminole Park and transforming it from a harness racing to a dog racing facility. The Demetrees had known Fountain for many years in both personal and business capacities. Fountain had an interest in ultimately participating in the operation of the track. Under statutes then in effect, persons who had been convicted of bookmaking crimes were forever barred from participating in the management of pari-mutuel facilities. The Demetrees participated in lobbying a bill through the Legislature which would allow for approval by the Respondent of persons who had in the past been convicted of bookmaking crimes to be licensed in the pari-mutuel industry. The lobbying effort was successful. Fountain did apply for licensure to participate in the management of Seminole Greyhound Park, but he withdrew his application before it was acted upon by the Respondent. Fountain had known the Petitioner for many years. Fountain recommended to the Demetrees that they consider Petitioner for the job of general manager at Seminole Greyhound Park. The Petitioner was working as racing secretary at a dog racing track in Miami. He traveled to Orlando to be interviewed by the Demetrees. Fountain participated in at least one of those interviews. Petitioner was hired as general manager in October, 1981. Fountain was very active in the effort to convert Seminole Park into a greyhound racing facility. Fountain was basically in charge of the renovation project. Petitioner worked closely with Fountain. When Petitioner first moved to Orlando, he shared a motel suite with Fountain. The two were close friends, and they met socially as well as working together in the business enterprise. One of the Demetrees had inquired of the Secretary of the Department of Business Regulation as to the propriety of Fountain working in the renovation project. The Secretary expressed no opposition to Fountain working in that capacity, but advised that it would not be permissible for Fountain to be present at the track during the racing season or to participate in any capacity in the operation of the track. Paul Dervaes, the President of Seminole Greyhound Park, Inc., made a similar inquiry. By letter dated May 5, 1981, the Department of Business Regulation specifically advised Dervaes that it would be improper for Fountain to be in attendance at the track during the racing season or to participate in the management or operation of the track. Dervaes showed this letter to the Petitioner. On the first day of the racing season, Fountain was present at Seminole Greyhound Park solely to pick up some materials that he had left there. This visit to the park was expressly approved by Gary Rutledge, who was then the Director of the Division of Pari-Mutuel Wagering. It does not appear that Fountain was otherwise present at the track on that date or at any other time during the 1981 racing season. Despite the Respondent's admonishment that Fountain should not participate in management or operation of Seminole Greyhound Park, Petitioner continued to consult with Fountain on a frequent basis during the 1981 racing season. Fountain frequently contacted the Petitioner with regard to how well the track was performing. Petitioner specifically consulted with Fountain regarding publicity and promotional activities. Fountain had been instrumental in encouraging the use of a "Super 8" promotion whereby customers at the track would attempt to successfully place the order of finish of all eight dogs in a given race. When the promotion was less successful than had been anticipated, Petitioner consulted directly with Fountain about it. Fountain made various recommendations, some of which were followed and some which were not. During the course of the racing season, Fountain communicated with Petitioner with respect to certain persons who Fountain suggested be given special benefits, such as free meals, at the track. These were persons who were "good betters," i.e., persons who placed large bets. These recommendations were followed by Petitioner. On one occasion, Fountain was responsible for authorizing a "petty cash" expenditure for a wedding present for a member of the press. Petitioner approved the expenditure that had been authorized by Fountain. In addition to participating in operation of Seminole Greyhound Park in these specific instances, Fountain was in constant telephone communication with Petitioner and other persons at the park. In addition to communicating with Fountain about various facets of the business operation, Petitioner was in frequent contact with him on a personal basis. It appears that Fountain had more than a casual interest in the success of Seminole Greyhound Park. It appears, for example, that Fountain loaned large amounts of money directly to owners of the park for the express purpose of purchasing and renovating the facility. Although Fountain was employed by the Demetrees to accomplish the renovation of the facility, it appears that he was not compensated for that work. It further appears that no interest was paid to him on the loans that he made to park owners. These activities may reflect adversely upon the ownership of Seminole Greyhound Park. It does not, however, appear that Petitioner was aware of any financial interest that Fountain may have had in Seminole Greyhound Park. Petitioner was responsible for hiring a veterinarian to serve as the approved track veterinarian, and for seeing that the veterinarian was properly approved by the Respondent. Petitioner hired Dr. Bob Sindler as the track veterinarian, and Sindler was properly approved. Shortly before opening day, Petitioner learned that Sindler would not be able to be present at every racing session, and that he would send an associate, Dr. David Case, to serve as track veterinarian on those dates. Dr. Case actually served as track veterinarian on several occasions before he was properly approved by the Respondent. While Case was ultimately approved, and it does not appear that he performed his responsibilities other than properly, he did serve for at least a brief period as track veterinarian before he had been properly approved. Under the Respondent's rules, entries for all races must be drawn by lot, with certain exceptions. One of these exceptions is for "T" races. These races are made up by the track's racing secretary and can include dogs that are not in the same grade and more than one dog from the same kennel. The number of such races is limited to no more than three races per week. Considerably more than three "T" races were run at Seminole Greyhound Park during every week of its 1981 season until the Respondent advised the racing secretary of the violations by a memorandum. Personnel at Seminole Greyhound Park had not received any prior authorization from the Respondent to run more "T" races than allowed under the Respondent's rules. Petitioner was not directly responsible for developing racing programs. That task fell to the racing secretary. The racing secretary was, however, supervised by the Petitioner, and Petitioner knew, or should have known, that excessive "T" races were being run. Greyhound racing facilities are required to devote a portion of receipts to charitable endeavors and to the State Board of Regents. On Petitioner's advice, Bill Demetree prepared a list of institutions to which he wished to devote the funds from the Board of Regents' allotment. He sent checks to each specific institution, rather than a single check to the Board of Regents, which would have then been disbursed to the designated institutions. It appears that the Petitioner gave Demetree this advice after consulting by telephone with personnel of the Respondent. It appears that he misunderstood information that was conveyed to him. On or about August 21, 1981, the Respondent engaged in what was described at the bearing, depending upon the disposition of the witness, as a "raid" or an "investigative action." Agents of the Respondent and the Department of Law Enforcement appeared at Seminole Park during a racing session, seized documents, conducted tests on dogs, and interviewed track personnel. Petitioner was detained and questioned at length by Gary Rutledge, then the Director of the Division of Pari-Mutuel Wagering. Rutledge testified that Petitioner admitted during the course of an interrogation that Petitioner had made bets with bookies on football games. There was no recording device in operation during that portion of the interview, and no other person heard the statement. Rutledge did not testify as to the precise language used by Petitioner in making this asserted admission. The nature of these bets, when they were made and, indeed, whether they were legal or not cannot be gleaned from the evidence.
