The Issue Whether Respondent's license to practice veterinary medicine should be revoked or suspended for alleged violation 474.14(1), 474.15, and 474.31 (1), and (6), Florida Statutes. This case was consolidated by order of the Hearing Officer issued December 5, 1975, with Florida Board of Veterinary Medicine vs. Harold M. McGee, D.V.M., Docket No. 751926 because the cases involve similar issues of law and fact. At the hearing, Respondent was advised of his right to employ legal counsel at his own expense to represent him. He elected to appear in his own behalf. He was then advised of his rights under the Administrative Procedure Act, including the right to testify in his own behalf, if he so desired. He indicated that he understood these rights.
Findings Of Fact Respondent was licensed by the Board of Veterinary Medicine on July 27, 1975 and was not licensed on March 4, 1975. On March 4, 1975 Respondent was employed by Dr. Harold M. McGee, D.V.M., at his place of business located at 3520 Northwest 36th Street, Miami, Florida. On March 4, 1975, Chery Lynn Correa, along with Dr. Calvin Dugas, D.V.M., both employees of the Knowles Animal Hospital in Miami took a Doberman Pinscher to Dr. McGee's clinic. Their visit was prompted by a request of their employer, Dr. Knowles, who had asked them to check a complaint that there were unlicensed veterinarians working for Dr. McGee. Without disclosing their purpose, Correa informed the receptionist that she had brought the dog to get rabies and distemper shots and to have some bumps on its neck checked. She and Dr. Dugas were referred to Respondent in the treatment room. He checked the dog and told them that the bumps were due to an improper diet. He then administered inoculations for rabies and distemper and checked the animal for worms. He also looked at the dog's throat and diagnosed tonsilitis for which he prescribed tetracycline pills. He also procured liquid shampoo called Tergex for a skin problem and gave instructions to bathe the dog once a week. He gave two more injections of antibiotics and cortisone. The receptionist signed Dr. McGee's name to the certificate of rabies vaccination and to a form for issuance of a Dade County dog tag. Respondent signed Dr. McGee's name to a Canine Interstate Health Certificate reflecting the administration of the inoculations. Correa paid the bill of $43.00 and then she and Dr. Dugas departed. During the time they were at the clinic, they did not see Dr. McGee on the premises (Testimony of Correa, Dugas, Petitioner's Exhibit 3). However, Dr. McGee was in the back office at the time in question suffering from a headache and had asked his receptionist to have Respondent give routine shots to animals during the day and only call him if a diagnosis was necessary. In view of Respondent's lack of a Florida license, Dr. McGee did not permit him to diagnose, treat, or incise skin of an animal without supervision. In accordance with these directions, Respondent always checked with Dr. McGee on a diagnosis and the latter would then prescribe the proper treatment. Respondent followed this procedure with respect to the dog brought to the clinic by Correa and received instructions from Dr. McGee as to the treatment that was thereafter performed. Respondent was not licensed by the Florida Board of Veterinary Medicine until July 27, 1975. Dr. McGee professed the belief at the hearing that since secretaries could sign distemper and rabies certificates, he felt Dr. Mayo could sign an interstate health certificate although he normally signed such documents himself. Respondent testified that he had worked for the local humane society for over nine years and, during that period, had signed his own name to interstate health certificates by authorization of the board of directors of the society. The receptionist took the interstate health certificate in question to Respondent to sign because he had administered the shots to the animal. She was unaware of the fact that he was unlicensed (Testimony of McGee, Mayo, Uriquize, Petitioner's Exhibit 2). Respondent was head of the Veterinary Services of the Cuban rebel army at the time he came to the United States. He has been a veterinarian since 1948. He is active in the Cuban community of Miami and enjoys a good reputation for truth and veracity in the community (Testimony of Mayo, Reboso).
Recommendation That the charges against Cristobal M. Gonzalez Mayo, D.V.M., be dismissed. DONE and ENTERED day of February, 1976 in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings The Carlton Building Room 530 Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Ronald C. LaFace, Esquire 101 East College Avenue P.O. Box 1752 Tallahassee, Florida Dr. Cristobal M. Gonzalez Mayo 971-A Southwest 8th Street Miami, Florida 33130
The Issue The issue in this matter is whether Respondent practiced veterinary medicine without a license; and, if so, what disciplinary action is appropriate.
Findings Of Fact The Department is the state agency charged with regulating the practice of veterinary medicine in Florida. See § 20.165(4)(a)13. and ch. 474, Fla. Stat. (2017). The Department brings this action alleging that Respondent engaged in the unlicensed practice of veterinary medicine in violation of section 474.213(1)(i), Florida Statutes (2015).3/ The Department specifically charges that Respondent, who does not hold a license as a veterinarian, used certain procedures to treat several horses, which constituted “veterinary medicine” as the term is defined in section 474.202(9). Respondent owns and operates Peak Performance Equine Dentistry. Respondent is not, nor has she ever been, licensed as a veterinarian in the State of Florida. As part of her “equine dentistry” services, Respondent “floats” horses’ teeth. “Floating” is the term used to describe filing or grinding down horses’ teeth to prevent overgrowth. Unlike humans, horses’ permanent teeth continue to grow throughout their lifetime. (Hence, the origin of the phrase “long in the tooth.”) Because of the manner in which horses chew, their teeth can develop sharp points and edges. Floating is the process of filing down those points to balance out or flatten the teeth. Floating helps horses masticate, as well as prevents tooth problems. Florida law specifically allows non-veterinarians to manually float teeth, i.e., with a hand-held file or rasp. See § 474.203(5)(b), Fla. Stat. However, only licensed veterinarians, or persons immediately supervised by a veterinarian, may float teeth using power tools. See § 474.203(7), Fla. Stat. Floating teeth by hand is a labor- intensive and lengthy process. Using a power tool, on the other hand, allows the practitioner more control over the filing process, as well as reduces the time needed to treat the teeth. On February 15, 2016, Tony King contacted Respondent to schedule an appointment for her to float the teeth of several of his horses. Mr. King learned of Respondent’s services through her advertisement for “equine dentistry” on the internet. On February 24, 2016, Respondent arrived at Mr. King’s barn at approximately 10:00 a.m. Mr. King identified nine horses whose teeth needed to be floated. Seven of the horses belonged to Mr. King. The other two horses were boarding at his barn. (None of the horses were owned by Respondent.) After unloading her equipment, Respondent proceeded to float the teeth of the first horse. She used a hand file and manually ground down the horse’s teeth. After Respondent floated the teeth of the first horse, she moved onto the second horse. Again, Respondent used a file and ground down the horse’s teeth by hand. However, Respondent soon found that the second horse was more difficult to treat. It became quite agitated as she worked on its teeth. Therefore, Mr. King decided to place a “twitch” on the horse’s nose. A “twitch” is a metal clamp that is strapped to the horse’s nose to calm it down and keep it under control. As Respondent continued floating, however, the horse suddenly reared up on its hind legs. When the horse descended, the twitch on its nose struck Mr. King on the left side of his face. Mr. King was knocked to the ground. He instinctively reached up to the wounded area. He felt that his eyeball had popped out of its socket and was resting on his cheek. (The eye was still attached to the optic nerve.) He impulsively shoved his eyeball back into the socket. When Mr. King gathered his wits, he quickly realized that he needed medical attention. He urged Respondent to continue working on the horses. Then, despite his blurred vision in one eye, he drove himself to a nearby surgery center where his wife was working. At the center, an eye doctor examined Mr. King and determined that his eye and vision issues would satisfactorily resolve themselves without treatment. (Mr. King did receive several stitches for a small cut under his left eye.) After his examination, Mr. King drove back to the barn returning approximately three hours later. At the barn, Mr. King was unsettled by what he found. According to his (one) eye witness testimony, Respondent was still working on the horses. However, in his absence, Mr. King believed that Respondent had 1) used a power tool to float the teeth of several horses, 2) administered a sedative to up to five horses, and 3) was preparing to pull “wolf” teeth from several horses. The Use of a Power Tool Regarding the use of a power tool, Mr. King testified that after Respondent arrived at his barn, she unloaded several pieces of equipment from her car. In this equipment, Mr. King observed power tools and a sedation bag. Upon returning to the barn after his trip to the eye center, Mr. King witnessed Respondent use an electric power tool to float the teeth of his horse, Warrior. Mr. King described the tool as having a motor and a head that Respondent applied to the horse’s mouth. He also saw that the tool was plugged into a power outlet in the barn. Sedation Floating teeth, especially with a power tool, often includes sedating the horse. Sedation makes the horse more docile and reduces the risk of harm during the treatment. Under Florida law, administering medication and drugs is considered the practice of veterinary medicine. See § 474.202(9), Fla. Stat. An unlicensed person may sedate a horse only if they are under the immediate supervision of a licensed veterinarian. See § 474.203(7), Fla. Stat. Mr. King testified that when he returned to the barn from the eye center, Warrior appeared to be heavily sedated. The horse was having difficulty keeping his head up on the rest. His ears were flat, and his nose hung down almost to the ground. Mr. King further noticed that at least four other horses showed signs of sedation in that they could not hold their heads up either. Mr. King also observed several plastic tubes or plungers on the ground which he believed were used to administer a gel- type sedative to the horses. Finally, Mr. King testified that Respondent, in fact, told him that she had sedated the horses. Mr. King further attested that he directly witnessed Respondent administer a sedative to a paint mare. Mr. King remarked that he saw Respondent holding a small syringe with a needle. He then watched her poke the paint mare several times with the needle, searching for a vein, before she injected the drug. Mr. King also relayed that Respondent commented that her needles were too small, as her mother had purchased the wrong size. Removing “Wolf” Teeth A horse’s “wolf” teeth are deciduous premolars. (They are similar to human wisdom teeth.) Wolf teeth often interfere with the fit of a bit in a horse’s mouth. Therefore, wolf teeth are frequently removed. Extracting wolf teeth, however, is not considered part of floating a horse’s teeth. Instead, removing wolf teeth is a surgical procedure due to the fact that pulling teeth typically requires sedation, as well as the use of certain medical equipment. As such, removing wolf teeth cannot be performed by an unlicensed person, unless such person is under the immediate supervision of a veterinarian. See §§ 474.202(13) and 474.203(7), Fla. Stat. Regarding Respondent’s removal of “wolf” teeth, Mr. King testified that after he observed the gel tubes and the syringe, Respondent informed him that several horses needed their wolf teeth extracted. Mr. King watched as Respondent pulled the wolf teeth from three horses, including Warrior, Scout, and the paint mare. Mr. King expressed that Respondent appeared to have difficulty removing the wolf tooth from the paint mare, as it took a long time. Within days after Respondent’s visit to his barn, Mr. King noticed that several horses were having trouble chewing. Upon inspecting his horses, Mr. King found at least one tooth that still had a point, and other teeth that were rounded, instead of filed flat. Shortly thereafter, Mr. King sought the care of a veterinarian to fix the problems. Soon afterwards, Mr. King complained to the Department about Respondent’s equine dentistry services. Based on Mr. King’s complaint, the Department charged Respondent with three counts of practicing veterinary medicine without a license, including: floating teeth using a power tool, instead of by hand, in violation of sections 455.227(1)(q), 474.213(1)(i), and 474.202(13), Florida Statutes; pulling “wolf” teeth in violation of sections 455.227(1)(q), 474.213(1)(i), and 474.202(13); and sedating at least one horse in violation of sections 455.227(1)(q), 474.213(1)(i), and 474.202(9. In response to the Department’s allegations, Respondent flatly denied that she used a power tool to float the teeth of Mr. King’s horses. Respondent testified that she floated all of the horses by hand with a file. Respondent also refuted Mr. King’s testimony that she sedated any horses or pulled any wolf teeth. Respondent further denied that she has ever used power tools in her business. Neither has she ever sedated horses or pulled their teeth. Respondent maintained that she floats teeth exclusively by hand and with hand tools. Respondent also disputed key portions of Mr. King’s account. Respondent testified that it was Mr. King who raised the option of sedating his horses. Despite his suggestion, Respondent contended that she refused to do so. Respondent further insinuated that the metal object Mr. King observed in her hand was a tool used to scrap tarter off of a horse’s teeth. Finally, Respondent argued that she finished her floating treatment on all nine horses before Mr. King returned to the barn from the eye center. Therefore, he could not have watched her use a power tool, pull teeth, or sedate horses. Notwithstanding Respondent’s assertions, evidence presented at the final hearing established that Respondent is familiar with, and has received training in, the use of a power tool to float horses’ teeth. In May 2015, Respondent attended an equine dentistry program in Virginia during which time she received training on how to float horse’s teeth using both hand and rotary power tools. Shortly thereafter, she started her equine dentistry business in Florida. Several photographs of Respondent using a power tool on a horse are posted on her business’s Facebook page. Respondent acknowledged that the use of power tools and sedation, as well as the removal of wolf teeth, constitute the practice of veterinary medicine in Florida. Therefore, she could only perform these procedures and techniques under the immediate supervision of a veterinarian. Unrelated to the issue of Respondent’s use of a power tool and sedation, Respondent and Mr. King disputed whether Respondent received full payment for her equine dentistry services. Respondent testified that after she floated the nine horses, she presented Mr. King with invoices for her work. At the final hearing, Respondent produced nine separate Equine Dental Records detailing the amount she charged, as well as the treatment she provided for each horse. Respondent testified that it is her routine practice to complete an Equine Dental Record while she works on a horse and provide a copy to the client. Respondent relayed that her standard charge for floating services is $75 per horse. The Equine Dental Records that she produced record that she billed Mr. King $75 per horse ($675 total) and for no other treatment. Therefore, Respondent asserts that her documents confirm that she only floated the nine horses’ teeth and did not pull wolf teeth or administer sedation. Respondent also stated that Mr. King only had $500 in cash when she presented him with the invoices. Therefore, he told her that he would mail her a check for the remainder. However, when she called Mr. King a week later to follow up on his payment, he refused to pay the rest of the bill. Instead, he demanded that she pay him $500 to cover the medical cost of his eye injury. At the final hearing, Respondent declared that Mr. King filed a false complaint against her in an effort to extort payment from her for his medical expenses. Respondent also pointed out that the amount she charged, as recorded on the Equine Dental Records she prepared, does not match the figure Mr. King recalled he paid her. Therefore, his memory of the event is not credible or reliable. Mr. King remembered that Respondent charged him around $600 for the floating procedure. But, he asserted that she charged him an additional amount for the sedation and the extraction of the wolf teeth. Mr. King stated that he paid Respondent the full amount of her services, in cash, on the date she treated his horses. Mr. King denied that he ever received or saw the Equine Dental Records Respondent produced at the final hearing. Mr. King disputed Respondent’s claim that she supplied him with a written bill, invoice, or receipt of any kind for her floating services. Mr. King further denied that he demanded Respondent pay for his medical expenses. He represented that he owed nothing for his hospital visit because his wife worked at the facility. The Department introduced the testimony of Patricia Austin in rebuttal.4/ Ms. Austin testified regarding a similar floating service she received from Respondent on her horse. Ms. Austin was acquainted with Respondent from boarding her horse at a barn where Respondent took lessons and occasionally cared for horses. Ms. Austin testified that in May 2016, she hired Respondent to float the teeth of her horse, Sapphire. During the procedure, Ms. Austin observed Respondent use a power tool to file down Sapphire’s teeth. Ms. Austin described the power tool as a long metal device with a grinder on the end. The tool was equipped with a power cord and was plugged in during the treatment. Ms. Austin also witnessed Respondent sedate her horse. Ms. Austin watched as Respondent injected Sapphire with a needle. Following the injection, Ms. Austin relayed that Sapphire’s head and ears began to droop, and she appeared sleepy. Ms. Austin paid Respondent for her services in cash, half at the time of treatment and the other half two weeks later. Respondent did not provide Ms. Austin with an invoice or receipt. Neither did Ms. Austin receive an Equine Dental Record from Respondent documenting her work on Sapphire. Respondent denied that she ever floated the teeth of Sapphire or any other horse for Ms. Austin. Instead, Respondent asserts that she simply looked at Sapphire’s teeth and determined that the horse did not need dental care. The Department incurred $288.47 in investigative costs associated with this matter. Based on the competent substantial evidence produced at the final hearing, the clear and convincing evidence in the record establishes that Respondent engaged in the practice of veterinary medicine without a license. Accordingly, the Department met its burden of proving that Respondent should be disciplined for her unlicensed conduct.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation enter a final order finding that Respondent, Megan McMurran Lajara, violated section 474.213(1)(i) and impose an administrative fine in the amount of $9,000 ($3,000 for each separate violation), as well as assess costs in the amount of $288.47. DONE AND ENTERED this 31st day of January, 2018, in Tallahassee, Leon County, Florida. S J. BRUCE CULPEPPER 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 31st day of January, 2018.
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 The issue in this case is whether Respondent, Imperial Embassy Condominium Four, Inc. ("Imperial"), discriminated against Petitioner, Barbara Porter ("Porter"), on the basis of her purported disability in violation of the Florida Fair Housing Act.
Recommendation Based on the foregoing, Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Florida Commission on Human Relations dismissing the Petition for Relief filed by Barbara Porter in its entirety. DONE AND ENTERED this 17th day of February, 2012, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN 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 17th day of February, 2012.
Findings Of Fact At all times pertinent to the allegations contained herein, Respondents held valid Pari-Mutuel Wagering occupational licenses as greyhound judges that had been issued by Petitioner. Respondent, Robert C. Crawford, holds license number 0131528-6035 and was, at all times pertinent hereto, the Presiding Judge at Biscayne Kennel Club. Respondent, Robert E. May, holds license number 0131748-6035 and was, at all times pertinent hereto, the Associate Judge at Biscayne Kennel Club. Biscayne Kennel Club is a pari-mutuel facility located in Dade County, Florida, that is licensed by Petitioner. Petitioner has duly enacted a rule 1/ which provides that three judges have general supervisory authority and responsibility over all facets directly involved in the running of pari-mutuel races, including other race officials. Two of these judges, the "presiding judge" and the "associate judge" are so designated by the pari-mutuel facility. The third judge, referred to as the "division judge", is designated by the Petitioner. At all times pertinent to these proceedings, the three judges, acting as a collegial body, had the responsibility and the authority to supervise the Racing Secretary, the Paddock Judge, the Chart Writer, and all other racing officials at Biscayne Kennel Club. During the evening performance of April 30, 1991, Biscayne Kennel Club conducted 13 separate greyhound races upon which wagering was permitted. For the evening performance of April 30, 1991, Respondent Crawford and Respondent May were serving at Biscayne Kennel Club in their official capacities as Presiding Judge and Associate Judge, respectively. At the times pertinent hereto, including the evening performance of April 30, 1991, Douglas D. Culpepper was the Division Judge at Biscayne Kennel Club. The 13th race was conducted without apparent incident, the three judges agreed on the order of finish, and the official results were posted as agreed by the three judges. The official results reflected that the greyhound wearing blanket number 8 finished first, the greyhound wearing blanket number 5 finished second, the greyhound wearing blanket number 6 finished third, and the greyhound wearing blanket number 4 finished fourth. The greyhound wearing blanket number 7 was officially charted as having finished eighth. The 13th race on April 30, 1991, concluded at approximately 11:12 P.M. and was the last race of the evening. At approximately 11:25 P.M., Norman T. Campbell, the general manager of Biscayne Kennel Club, telephoned Respondent Crawford and asked that Respondent Crawford, Respondent May, and Mr. Culpepper meet him in his office. This request from Mr. Campbell was in response to a report he had received that three greyhounds had been mis-identified when the greyhounds were blanketed under the supervision of the Paddock Judge immediately prior to the running of the 13th race. The three greyhounds that had been reportedly mis-identified were: NY DAMASCUS, STRIDDEN RITE, and MPS SEBASTION. The following trainers attended the meeting in Mr. Campbell's office that followed the 13th race: Maggie Spears, the trainer of STRIDDEN RITE; Joel Fries, the trainer of NY DAMASCUS; and Jeanne Ertl, the trainer of MPS SEBASTION. These three trainers were in agreement that their three greyhounds had been mis-identified. These three trainers agreed that the following errors occurred: (1) NY DAMASCUS was assigned the fifth post, but was wearing blanket number 7; (2) STRIDDEN RITE was assigned the sixth post, but was wearing blanket number 5; and (3) MPS SEBASTION was assigned the seventh post, but was wearing blanket number 6. These three trainers agreed that the official results were in error as follows: (1) NY DAMASCUS officially finished second, but he actually finished eighth, twenty lengths off the pace; (2) STRIDDEN RITE officially finished third, but he actually finished second by a nose; and (3) MPS SEBASTION officially finished eighth, but he actually finished third. The three trainers were in agreement that the prize money going to the trainer/owner of the greyhound should be redistributed to reflect the actual finish of the race. Instead of second place money, the trainer of NY DAMASCUS agreed to take nothing. Instead of third place money, the trainer of STRIDDEN RITE received second place money. Instead of no money, the trainer of MPS SEBASTION received third place money. The decision was made at the meeting of April 30, 1991, to redistribute the prize money awarded to the trainer/owner consistent with the agreement of the trainers. BISCAYNE KENNEL CLUB was closing and the public had disbursed by the time the alleged mis-blanketing was reported to Mr. Campbell. By the time the racing officials were made aware of the alleged mis-blanketing on the night of April 30, 1991, it was too late to recall the official results or to redistribute the payoff that had been made to the public pursuant to the official results that had been posted. In addition to the three trainers, the other persons in attendance at the meeting in Mr. Campbell's office following the 13th race on April 30, 1991, were: Mr. Campbell, Respondent Crawford, Respondent May, Mr. Culpepper, Kay Spitzer, and Jerry Escriba. Ms. Spitzer was the president of Biscayne Kennel Club. Mr. Escriba was acting in the capacity as the Paddock Judge. Mr. Escriba was not, as of April 30, 1991, licensed by Petitioner to act in the capacity as Paddock Judge. Mr. Escriba had attempted to become licensed, but had been unable to do so because Petitioner was temporarily out of the forms necessary to process the application. However, the Division Director of the Division of Pari-Mutuel Wagering had given his permission for Mr. Escriba to serve as Paddock Judge for the meet at Biscayne Kennel Club that included the races on April 30, 1991. While Mr. Escriba had not previously served as a Paddock Judge, he was qualified by experience and training to serve in that capacity. Mr. Escriba had participated in pari-mutuel events for approximately 13 years and had held a variety of positions all related to the management and control of racing greyhounds. Mr. Escriba had observed the Paddock Judge perform his duties on thousands of occasions. Before Mr. Escriba was assigned the position of Paddock Judge, he was subjected to a two week training period under the supervision of Respondent Crawford and a former experienced Paddock Judge named Chris Norman. Respondent Crawford and Respondent May knew Mr. Escriba well and had confidence in his abilities. The Paddock Judge is a racing official who has the responsibility to ensure that the greyhounds participating in a pari-mutuel event are properly identified and that each greyhound runs its assigned race in its assigned post position. The Paddock Judge, in keeping with his responsibilities, is required to engage in a series of examinations of each greyhound which are designed to ensure proper identification. Each greyhound has what is referred to as a "Bertillon card", which contains measurements, markings, and other identifying information unique to each greyhound. The Paddock Judge also examines the greyhound identification tattoo which is inscribed upon the ear of each greyhound. After the Paddock Judge completes the identifying process, a tag which designates the race and the post position in which the greyhound is to participate is placed upon the greyhound's collar. Just prior to the race, when a greyhound that is about to race is on the viewing stand, the Paddock Judge executes his final check by ensuring that the tag upon the greyhound's collar corresponds to the race and the blanket number that has been assigned to the greyhound. At the meeting of April 30, 1991, and at the formal hearing, Mr. Escriba adamantly maintained that the alleged mis-blanketing of the greyhounds had not occurred. Mr. Escriba maintained that all identifying procedures had been properly followed and that the trainers were mistaken. Mr. Escriba's only explanation as to how such an alleged mis-identification could have occurred was that he was operating shorthanded, with only twelve leadouts instead of the usual complement of sixteen. Mr. Escriba asserted at the hearing that the twelve leadouts were enough to perform the work. Mr. Culpepper had little doubt after the meeting in Mr. Campbell's office broke up in the early morning hours of May 1 that the mis-identification had occurred and he believed that Mr. Escriba had not followed the rigid identification procedures. Because it was too late to redistribute the pay out to the public and because there was a conflict between the trainers and the Paddock Judge as to what had happened, Respondent Crawford, Respondent May, and Mr. Culpepper decided that the best course of action was to seek guidance from the highest state official available by telephone. The official contacted was Allen P. Roback, the Regional Supervisor of the Bureau of Operations of the Divisions of Pari-Mutuel Wagering. Mr. Roback had general supervisory authority over the operation of Biscayne Kennel Club and direct supervisory authority over the Respondents. Mr. Roback was contacted by telephone shortly after midnight, in the early morning hours of May 1, 1991. During the telephone call in the early morning hours of May 1, 1991, Mr. Roback talked with Mr. Campbell and Mr. Culpepper. Mr. Roback instructed them that the matter of the 13th race should be handled in the same manner as an incident generally referred to as the "photo finish" incident. The "photo finish" incident occurred at Biscayne Kennel Club in December of 1990 during a race for which Mr. Roback served as the Division Judge, Respondent Crawford served as the presiding Judge, and Respondent May served as the Associate Judge. Following the subject race, the judges declared the official results relating to the first and second place winners. A photo of the finish was provided the judges approximately eight minutes after the race concluded and revealed that the greyhound that had been declared the first place winner had actually been beaten by the greyhound that had been declared the second place finisher. Notwithstanding the undisputed photographic evidence that the official results were wrong, it was decided by the judges that the official results would not be changed. The pari-mutuel pay out to the public was made on the basis of the official results. However, the prize money to the trainers/owners of the greyhounds was distributed based on the actual finish of the first and second greyhounds as revealed by the photograph. Mr. Roback had been clear in his instruction not to change the official results following the "photo finish" incident. The two greyhounds that finished first and second in that race continued to race thereafter with their respective performance lines as indicated by the official and not the actual order of finish. After Mr. Culpepper had spoken with Mr. Roback, Respondent Crawford and Respondent May were advised that the Division of Pari-Mutuel Wagering would be conducting an official investigation into the events surrounding the conduct of the 13th race at Biscayne Kennel Club on April 30, 1991. Respondent Crawford and Respondent May were not directed to change the official results of the 13th race, nor were they told to withhold the three greyhounds involved in the dispute from further participation in pari-mutuel events pending the investigation. Respondent Crawford and Respondent May reasonably believed that the official results of the 13th race were final until otherwise notified by the Division of Pari-Mutuel Wagering. On May 1, 1991, during normal business hours, the alleged mis- blanketing incident was assigned to Marilyn (Lyn) Farrell for investigation. Ms. Farrell is an investigator for Petitioner's Bureau of Investigations. One of Ms. Farrell's assignments was to make a determination of the actual order of finish of the 13th race. Ms. Farrell's investigative report was completed on May 9, 1991. In that report, Ms. Farrell correctly concluded that the mis- blanketing of the three greyhounds had occurred, that the official results were wrong, and that the actual order of finish was that agreed to by the three trainers of the greyhounds involved. Mr. Roback and Ms. Farrell each visited Biscayne Kennel Club during the course of the investigation. Mr. Roback first spoke with Gary Duell, the Racing Secretary, who told him to talk with Respondent Crawford. Respondent Crawford asked Mr. Roback how much trouble he was in and asked him to meet with Mr. Campbell. While the investigation was pending, Mr. Escriba told Respondent Crawford that on April 13 there was confusion in the area where the greyhounds who were to run the 13th race were being blanketed. Mr. Escriba said that he panicked and released the greyhounds to the track before checking all of their tags when the bell for the 13th race rang. Respondent Crawford passed this information on to Mr. Roback. There was no discussion between Mr. Roback and the Respondents as to whether the racing lines should differ from the official results of the race. In the period between April 30, 1991, the date of the incident, and May 9, 1991, the date Ms. Farrell completed her investigation, NY DAMASCUS, MPS SEBASTION, and STRIDDEN RITE continued to participate at pari-mutuel events at Biscayne Kennel Club. A racing line for each greyhound scheduled to run in a pari-mutuel event is published in the event's program. The program is distributed to the public. Members of the public then use the information contained in the racing line to determine their bets. A racing line gives certain information pertaining to the greyhound, including the greyhound's recent performance history. Because the information is used to formulate wagers, it is important that the information is accurate. The chart writer is the official with direct responsibility for the accuracy of the racing lines. The chart writer at Biscayne Kennel Club at the times pertinent to this proceeding was Mildred A. Ketchum. At Biscayne Kennel Club on May 3, 1991, MPS SEBASTION participated in the 6th race, STRIDDEN RITE participated in the 10th race, and NY DAMASCUS participated in the 15th race. The racing line for each of these greyhounds contained in the official racing program published by Biscayne Kennel Club for the races held May 3, 1991, charted the performance of that greyhound in the 13th race for April 30, 1991, consistently with the official results that had been posted following the race. At Biscayne Kennel Club on May 7, 1991, MPS SEBASTION participated in the 4th race. The racing line for MPS SEBASTION contained in the official racing program published by Biscayne Kennel Club for the races held May 7, 1991, charted the performance of that greyhound in the 13th race for April 30, 1991, consistently with the official results that had been posted following the race. At Biscayne Kennel Club on May 8, 1991, STRIDDEN RITE participated in the 1st race. The racing line for STRIDDEN RITE contained in the official racing program published by Biscayne Kennel Club for the races held May 8, 1991, charted the performance of that greyhound in the 13th race for April 30, 1991, consistently with the official results that had been posted following the race. On May 9, 1991, John Pozar, Petitioner's Bureau Chief for the Bureau of Investigation, called Respondent Crawford, indicated that the investigation had confirmed that the mis-identification had occurred, and instructed him to scratch NY DAMASCUS from a race that was scheduled for later that day. Mr. Pozar also instructed Respondent Crawford to change the racing lines for the three greyhounds to reflect their correct performances on April 30, 1991. This was the first direction from Petitioner as to the results of the investigation or as to the action that should be taken. Respondents took immediate action to comply with Mr. Pozar's instructions. The correct performance lines for NY DAMASCUS, STRIDDEN RITE, and MPS SEBASTION in the 13th race at Biscayne Kennel Club did not appear in any Biscayne Kennel Club Program until May 11, 1991. Respondent Crawford, Respondent May, and Mr. Culpepper, as the three judges, had supervisory responsibility and authority over the chart writer and could have ordered her to change the performance lines for the three greyhounds involved in the incident of April 30, 1991, at any time between April 30 and May 9. The three judges did not act to change the performance lines between April 30 and May 9 in deference to the investigation being conducted by Petitioner's investigators. In the matinee program for May 11 for the 12th race, the racing line for NY DAMASCUS accurately reflects that it finished eighth in the 13th race on April 30, 20 lengths off the pace. In contrast, the racing lines for NY DAMASCUS contained in the May 3 program erroneously reflected that NY DAMASCUS finished second by a nose. In the evening program for May 11 for the 13th race, the racing line for STRIDDEN RITE accurately reflects that it finished second by a nose on April In contrast, the racing lines for STRIDDEN RITE contained in May 3 and May 8 programs erroneously reflected that STRIDDEN RITE finished third. In the evening program for May 11 for the 2nd race, the racing line for MPS SEBASTION accurately reflects that it finished third, five lengths off the pace, on April 30. In contrast, the racing lines for STRIDDEN RITE contained in May 3 and May 7 programs erroneously reflected that MPS SEBASTION finished eighth, twenty lengths off the pace. Petitioner has adopted no rule which establishes the circumstances under which racing lines can vary from official results in a case such as this. The three judges have to use their judgment as to the appropriate course of action to take in resolving a charge of mis-blanketing. Official results of a race are not to be overturned by the judges in the absence of competent, substantial evidence that the official results are wrong. The record of this proceeding did not establish that these Respondents failed to act within the scope of their discretion in deferring to the investigation by Petitioner. Likewise, the record fails to establish that the Respondents failed to exercise their supervisory authority and responsibility by waiting to change the racing lines until after the official investigation was completed.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered which dismisses the administrative complaint brought against Respondent, Robert C. Crawford, in Case No. 91-6682 and which dismisses the administrative complaint brought against Respondent, Robert E. May, in Case No. 91-8107. DONE AND ORDERED this 29th day of July, 1992, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of July, 1992.
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.
Findings Of Fact Drug Detection Dogs. The School Board of Palm Beach County has, for some time, used dogs trained to assist school authorities in discovering illegal substances on school campuses, often in student lockers. The dogs are not owned by the School Board. The Board has contracted for the services of the drug detection dogs with D-Tek Enterprises. Board staff raised the possibility of terminating the contract with D-Tek, and continuing the program with dogs owned by the Board itself, in order to save money. A request for proposals (RFP) was prepared, which was released in July, 1990. The Responses to the July 1990 RFP. The Board received five responses to its July, 1990 RFP. Two proposals were rejected by Board staff because they were too expensive. Board staff then arranged to interview the remaining three proposers at one of the district schools. Shortly before the time the interviews were scheduled, staff members decided among themselves that they would like to see demonstrations of the dogs in action. Although it was not required as part of the RFP released in July, 1990, persons interviewed brought dogs with them to demonstrate the dogs' abilities. By the nature of a RFP, persons who submitted proposals to the Board had the option of suggesting different ways of providing the service the School Board wanted. Mr. Robert Anderson submitted two options in his response to the July, 1990 RFP; the second option was less expensive than the first, and was the option ultimately recommended by Board staff. The School Board, however, decided not to switch to a Board-owned drug detection dog program. It extended the contract for sniffer dog services with D-Tek, instead. The July, 1990 RFP for a proprietary drug detection dog program was effectively abandoned. The Anderson response to the July, 1990 request for proposals, and the Interview/Demonstration. Although the Board abandoned its July, 1990 request for proposals, DAD contends that irregularities in the conduct of Mr. Anderson with respect to that earlier proposal should disqualify him from responding to the School Board's current request for proposals, which was released on April 15, 1991. As part of the demonstration done in 1990, the dogs were to find hidden drugs so that Board staff could evaluate the ability of the bidder to train and properly handle dogs. The dogs used by Mr. Anderson were not dogs he owned, but dogs owned by the Palm Beach County Sheriff's Office, where Mr. Anderson, a deputy sheriff, was employed as a detection dog trainer. When School Board staff had first considered a Board-owned detection dog program, the Board staff member who served as Director of Security, Mr. Kelly, called the Palm Beach County Sheriff's Office to get information about the cost of maintaining dogs. He spoke with Mr. Anderson, who answered questions about food costs, types of training, and veterinarian costs. Mr. Anderson invited Mr. Kelly to see dogs involved in narcotics training. The Sheriff's Department held drug detection dog training every other Thursday. Answering inquiries from other government agencies about dog training programs was an ordinary part of the duties of Mr. Anderson. Shortly before his interview, in connection with his July, 1990 RFP response, Mr. Anderson received a call from Martha Jones of the School Board staff. She told him that the staff would like to see a sniffer dog demonstration as part of the interview. Mr. Anderson knew that such a demonstration was not a part of the RFP. He then asked a Palm Beach County Sheriff's Office Deputy, Deputy Bechtel, to bring one of the Sheriff's dogs to the school on the day of the interview so that the School Board evaluation team could see one of the Sheriff's dogs in action. Mr. Anderson had spoken with Mr. Kelly earlier about seeing the Sheriff's Office dogs in action, but that conversation was unrelated to any RFP. The last minute request by Board staff for a demonstration of sniffer dogs presented Mr. Anderson with the opportunity to appear before the Board staff in two capacities: in his private capacity as a proposer who had responded to the Board's RFP, and indirectly as an employee of the Sheriff's Office. Mr. Anderson made no attempt to separate his capacities when he attended his interview, but he did not actually demonstrate a drug detection dog himself. He had Deputy Bechtel come to the school at the same time so that Deputy Bechtel could demonstrate a dog in action for the Board staff following Anderson's interview. It is common for the Palm Beach County Sheriff's Office to bring Sheriff's Office drug detection dogs to other government agencies to demonstrate their abilities when requested. The demonstration conducted for School Board staff by Deputy Bechtel included a demonstration of the dogs' ability to detect actual drugs. For a private dog training company, the owner of the company would have to obtain a license from the U.S. Drug Enforcement Administration to possess drugs to use in training dogs. At the time of the demonstration, Mr. Anderson did not have such a license. Deputy Bechtel performed the demonstration using drugs in the possession of the Palm Beach County Sheriff's Office. The Board's July, 1990 RFP did not require any party submitting a response to the Board to have a DEA license. The Sheriff's Office dogs demonstrated by Deputy Bechtel after Mr. Anderson's interview were German Sheppards, dogs the Sheriff's Department ordinarily uses. The other competitors who were asked to bring dogs to the July, 1990 interviews were asked to use Labrador Retrievers or Golden Retrievers for their demonstrations. Board staff intended to recommend to the School Board that the Board purchase those dogs rather than German Sheppards if the Board would switch to a proprietary drug detection dog program. As noted in Finding 3, after the School Board rejected the staff recommendation that Robert Anderson receive the training contract for a proprietary drug detection dog program at its September, 1990 meeting, and the matter was dropped. The Second RFP. The question of a proprietary drug detection dog program was raised again at the April 10, 1991, meeting of the School Board by the Board's Division of Security. At that Board meeting, the matter came up as a "good cause" item which had not appeared on the previously published Board agenda. The Board agreed to seek new requests for proposals for training services for a proprietary drug detection dog program. Proposals were due in the School Board purchasing office by 2:00 p.m. on April 30th. The owner of the protesting party, DAD Enterprises, had sent an employee to the Board purchasing office to obtain copies of each of the proposals after they were filed. The proposal from Robert Anderson contained only one copy of the response, not the six copies the Board had requested. Consequently, the bid was photocopied so the original could be kept in the purchasing office while the copies were sent to the Board's Security Department, which would evaluate the proposals. The DAD employee did not receive a copy of the Robert Anderson proposal because it was out being photocopied. Consequently, the owner of DAD, Ms. Wummer, did not know that Mr. Anderson had submitted a response to the April, 1991 RFP. Ms. Wummer had a conversation with Mr. Kelly, the Director of the Board's Division of Security, shortly after she filed DAD's response. Mr. Kelly specifically told Ms. Wummer that she should not call the Security office to find out which proposal the staff would recommend to the Board, but that Board staff would advise her of the results of the evaluation. Ms. Wummer therefore did not contact Board staff, and did not learn that the staff had posted a bid tabulation choosing Robert Anderson's proposal. When Ms. Wummer learned of the staff's selection of Robert Anderson and attempted to object to the selection, the Board's Division of Security took the position that Ms. Wummer's protest came too late. The Board ultimately rejected this staff position and treated the protest by DAD Enterprises, Inc., as a timely one. The selection criteria contained in the School Board's April 15, 1991 RFPs are found in Section 6. They are: Selection Criteria The qualifications of the Prosper Firm including, but not limited to, how long the Prosper Firm has been in operation, references from prior clients, experience of principals of the Prosper Firm and references regarding each principal. The qualifications of the individual(s) to be assigned to the School Board Account including, but not limited to, work experience, references and education. The proposed method of screening/selecting the dogs for the School Board Account. The proposed method of training the dogs. The proposed method of training the School Board handlers. Demonstration of past and present successful experience and accomplishment of the types of services referenced herein, and particular in the public sector. Cost to the District. The RFP does not indicate, however, the relative weight to be assigned to each factor. Under the April 15, 1991, RFP, the qualifications for those submitting proposals do not include any provision requiring that the vendor have a U.S. Drug Enforcement Agency license. It was anticipated that the School Board itself would obtain the license from the U.S. Drug Enforcement Agency for drugs to be used in training the Board's dogs. See, Joint Exhibit 6, page 3, paragraph 4B. The staff report to the Board on April 10, 1991, also does not show that the successful proposer would have to hold a DEA license or would be responsible to obtain one. Id., page 1, paragraph 1C. The absence of a license is not relevant and does not exclude Mr. Anderson from the opportunity to submit his proposal under the April 15, 1991, RFP. The School Board obtained its registration certificate from the DEA for the possession of controlled substances on June 14, 1991. Mr. Anderson has demonstrated that he meets the qualifications to bid found in Section 3 of the April 15, 1991, RFP. He has a)three years of experience training dogs to sniff drugs, b)more than three years experience in training dog handlers; and c)submitted with his proposal proof of his experience in training dogs and handlers. Staff unanimously chose his proposal because it offered services for $20,000 less than any other proposal. This is an appropriate basis for selection of the Anderson proposal under selection criterion 6.7. See, Finding 13, above.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the protest filed by DAD Enterprises International, Inc., be rejected, and that the contract under Board proposal RFP-92C-002R be awarded to Robert C. Anderson. RECOMMENDED this 16th day of September, 1991, at Tallahassee, Florida. WILLIAM R. DORSEY, JR. Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of September, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-4078BID Rulings on findings proposed by DAD Enterprises International, Inc.: 1 and 2. Accepted in Finding 2. Accepted in Finding 4. Implicit in Findings 2 and 5. Adopted in Finding 7. 6a. Generally accepted in Finding 8. 6b. Implicit in Findings 4-8 inclusive. The evidence does not support the contention that those being interviewed and providing the demonstration were explicitly or implicitly representing to School Board staff that the dogs demonstrated were available for sale to the School Board. 6c. Accepted in Finding 7. 6d. Adopted in Finding 7. Rejected for the reasons discussed in Finding 5. The interview and the demonstration were not parts of the July 1990 RFP. Adopted as modified in Finding 9. Adopted as modified in Finding 10. Rejected as unnecessary. Nothing in the RFP required those submitting proposals to have DEA licenses. Rejected for the reasons given for rejecting proposed finding 10. See, also, Findings 7 and 13. Adopted in Finding 13. Adopted in Findings 11 and 12. Rejected as unnecessary, although true. The School Board has waived any irregularity resulting from Ms. Wummer's inability to file a protest within 72 hours after posting of the bid tabulations. Therefore no issue remains to be decided with respect to the timeliness of Ms. Wummer's protest. Discussed in Preliminary Statement. Rejected as a Conclusion of Law. Rulings on findings proposed by the School Board: Generally adopted in Finding 1. That the Board received four responses is discussed in the Preliminary Statement. Generally adopted in Finding 14. Rejected as unnecessary, although true. There is no issue as to the timeliness of the protest by DAD Enterprises, Inc. That issue was resolved by the School Board before the matter was sent to the Division of Administrative Hearings. 4 and 5. Rejected as a statement of position, not findings of fact. 6. Adopted in Finding 14. COPIES FURNISHED: Kevin D. Wilkinson, Esquire Wilkinson and Wilkinson 515 North Flagler Drive Suite 300 - Pavilion West Palm Beach, Florida 33401 Robert A. Rosillo, Esquire School Board of Palm Beach County 3970 RCA Boulevard, Suite 7010 Palm Beach Gardens, Florida 33410-4283 Thomas J. Mills, Superintendent Palm Beach County School Board 3980 RCA Boulevard, Suite 8044 Palm Beach Gardens, Florida 33410-4276 Honorable Betty Castor Commissioner of Education Department of Education The Capitol Tallahassee, Florida 32399-0400 Sydney H. McKenzie, General Counsel Department of Education The Capitol, PL-08 Tallahassee, Florida 32399-0400
