The Issue The issues for disposition in this case are whether proposed rules 61D-2.024(5); 61D-2.025(1), (2), (4), (7), and (8)(a); 61D- 2.028(2)(a)-(d), (6), (7), and (8); and 61D-2.029 are invalid exercises of delegated legislative authority as defined in section 120.52(8), Florida Statutes.
Findings Of Fact Petitioner is the horsemen’s association that represents the majority of the quarter horse owners and trainers at Gretna Racing, LLC (“Gretna Racing”). Gretna Racing holds a pari-mutuel permit and annual operating license that authorizes Gretna Racing to conduct pari-mutuel wagering on quarter horse races pursuant to chapter 550, Florida Statutes. The Horsemen’s Agreement between Petitioner and Gretna Racing has been filed with the Division in accordance with sections 550.002(11) and 849.086(13)(d)3. As the organization representing the majority of the horsemen participating in horse racing events conducted at Gretna Racing, NFHA is the statutorily-entitled recipient to the purses paid for the performances at Gretna Racing. Petitioner has approximately 200 members, the majority of whom are owners, trainers, and jockeys of American Quarter Horses and other breeds that are authorized to participate in pari-mutuel quarter horse races. The Division has issued occupational licenses to the majority of Petitioner’s members. Respondent, Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering (Respondent or Division), is the state agency charged with regulating pari- mutuel wagering activities in Florida pursuant to chapter 550. Intervenor is tasked by statute with certain functions concerning the conduct and promotion of pari-mutuel quarter horse racing at racetracks throughout Florida. Intervenor is the Florida affiliate of the American Quarter Horse Association (AQHA), which is the national quarter horse membership organization responsible for maintaining uniform standards for American quarter horse racing worldwide. NFHA’s members engage in non-traditional quarter horse racing, including “barrel match” and “flag drop” racing. Barrel match racing involves two adjacent rectangular tracks on which the horses and riders complete a cloverleaf pattern around preset barrels. Flag drop racing involves two or more horses racing simultaneously on a common, straight course of approximately 100 yards in length that is started by a flag drop, rather than a starting box or gate. Gretna Racing’s existing track configuration supports these forms of quarter horse racing. NFHA’s members and their horses are specifically trained for barrel match and flag drop racing and most would require extensive additional training to participate in other racing formats. Barrel match racing and flag drop racing, as they have been conducted at Gretna Racing, will not be capable of being run on quarter horse tracks that meet the standards to be adopted by proposed rules 61D-2.024 and 61D-2.025. Many of Petitioner’s members will not meet the jockey requirements to be adopted by proposed rule 61D-2.028 without additional training, and would be required to purchase racing uniforms under the proposed rule. On October 19, 2011, the Division issued an annual operating license to Gretna Racing, which authorized it to conduct racing performances under its previously-issued quarter horse racing permit during the 2011/2012 season. For reasons best explained by Administrative Law Judge John Van Laningham in Florida Quarter Horse Racing Association, Inc. v. Department of Business & Professional Regulation, Case No. 11-5796RU (Fla. DOAH May 6, 2013), the annual operating license had the effect of approving the conduct of barrel races at Gretna Racing. Following the Division’s issuance of the annual operating license to Gretna Racing, FQHRA challenged the Division’s approval of pari-mutuel barrel match racing as an unadopted rule. After an evidentiary hearing, a Final Order was issued on May 6, 2013, determining that “the policy of the Division pursuant to which "Gretna-style" barrel match racing is treated as the legal equivalent of traditional quarter horse racing, so that a quarter horse racing permitholder is able to obtain an annual license authorizing pari-mutuel wagering operations on barrel match racing, is an unadopted rule which violates section 120.54(1)(a), Florida Statutes.” Florida Quarter Horse Racing Ass’n, Inc. v. Dep’t of Bus. & Prof’l Reg., DOAH Case No. 11-5796RU at 78. The Final Order was affirmed by the First District Court of Appeal, quoting Judge Van Laningham with approval, that: To be legal and enforceable, a policy which operates as law must be formally adopted in public, through the transparent process of the rulemaking procedure set forth in section 120.54. In sum, the Division's policy of licensing the conduct of pari- mutuel wagering on [barrel match racing], on the ground that [barrel match racing] is legally equivalent to quarter horse racing, constitutes an unadopted rule. As such, it violates section 120.54(1)(a). Fla. Quarter Horse Track Ass’n, Inc. v. Dep’t of Bus. & Prof’l Reg., 133 So. 3d 1118, 1119-1120 (Fla. 1st DCA 2014). Following the entry of that Final Order, NFHA entered into a Consent Order with the Division that allows match races started by a flag drop as a pari-mutuel event pending the adoption of rules establishing standards for quarter horse racing. As a result of the Final Order, the Division began its rule development process for the proposed rules at issue in this proceeding when a Notice of Development of Rulemaking was published on September 6, 2013, in Volume 39, Number 174 of the Florida Administrative Register. A rule development workshop was held on October 16, 2013, in Fort Lauderdale, Florida. A second Notice of Development of Rulemaking was published on August 6, 2014, in Volume 40, Number 152 of the Florida Administrative Register. Another rule development workshop was held on August 27, 2014, in Orlando, Florida. The Division published a third Notice of Development of Rulemaking on December 24, 2014, in Volume 40, Number 248 of the Florida Administrative Register. A final rule development workshop was held on January 14, 2015, in Tallahassee, Florida. Representatives of numerous entities, including NFHA and FQHRA, participated in the workshops. On June 30, 2015, the Division published Notice of Proposed Rules 61D-2.024 through 61D-2.029 in Volume 41, Number 126 of the Florida Administrative Register. A public hearing was held on July 20, 2015, where representatives of numerous interested entities spoke and submitted written comments. On July 28, 2015, the Division published a Notice of Change to the proposed rules in Volume 41, Number 145 of the Florida Administrative Register. NFHA filed a petition challenging several of the proposed rules on July 30, 2015. On August 21, 2015, NFHA filed an Amended Petition to Determine Invalidity of Proposed Rules, which was accepted by the ALJ. FQHRA filed a Motion to Intervene in the case on September 18, 2015. That motion was granted on September 22, 2015. NFHA’s Amended Petition challenged the following rules proposed by the Division: 61D-2.024(5); 61D-2.025(1), (2), (4), (7) and (8)(a); 61D-2.028(2)(a)-(d), (6), (7), and (8); and 61D- 2.029. The challenged rules purport to implement provisions of chapter 550, which governs pari-mutuel wagering. NFHA contends that the challenged rules are an invalid exercise of the Division’s delegated legislative authority because, in violation of section 120.52(8)(b), the Division is exceeding its grant of rulemaking authority in adopting the rules and, in violation of section 120.52(8)(c), the challenged rules enlarge, modify, or contravene the law implemented. NFHA further contends that each of the challenged rules violates the “flush left” language in section 120.52(8). Finally, NFHA asserts that proposed rules 61D-2.028(2)(a)-(d), (6), (7), and (8); and 61D-2.029 are vague in violation of section 120.52(8)(d).
The Issue The first issue is whether the Greyhound Veterinary Assistant Procedures Manual published by the Division of Pari- Mutuel Wagering ("Division Manual") constitutes an unadopted rule in violation of section 120.54(1)(a), Florida Statutes (2014).1/ Petitioner further contends that the agency materially failed to follow applicable rulemaking procedures with respect to the Division Manual; that it is vague, fails to establish adequate standards for agency decisions, invests unbridled discretion in the agency; and is arbitrary and capricious, in violation of sections 120.52(8)(a), (d), and (e). A second issue is whether Florida Administrative Code Rule 61D-6.002 is an invalid exercise of delegated authority because it enlarges, modifies, or contravenes the provisions of section 550.0251(3), Florida Statutes; is vague, fails to establish adequate standards for agency decision, or vests unbridled discretion in the agency; or is arbitrary and capricious, in violation of sections 120.52(8)(c), (d), and (e). Petitioner further contends that rule 61D-6.002 violates Petitioner's due process rights and is therefore unconstitutional.
Findings Of Fact Petitioner, Mr. Robert Dawson, is the holder of an Unrestricted U-1 Professional Pari-Mutuel License authorizing him to train racing greyhounds pursuant to section 550.105, Florida Statutes. Mr. Dawson is subject to chapter 550 and the administrative rules promulgated thereunder in Florida Administrative Code Chapter 61D. Respondent, the Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering ("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 Florida. In the past, the Division used to take urine samples from dogs after a race, usually from the winner. The dogs to be tested would be announced, and the owner or his representative could then witness the sample collection and sign indicating that he had witnessed the sample being taken. In late 2008, the Division changed the procedures that it follows and began to take pre-race samples. Mr. Jorge Callejas testified that many dogs tend to urinate prior to the race, and it was noted that, after a race, they were tired and not as interested in urinating. The Division had monitored statistics and found that with post-race collections, the number of samples that did not have a sufficient quantity for testing was very high. After switching to pre-race testing, the number of untestable samples went down significantly. At that time, they began using an earlier version of the Division Manual, which sets forth procedures to be followed by veterinary assistants employed by the Division working with the racing greyhound program. The Division now conducts random pre-race urine sample collections at all of its licensed greyhound race tracks. The Division uses the Division Manual at all greyhound racing facilities in the state of Florida. The Division provides the Division Manual to its veterinary technicians working at the licensed greyhound race tracks. The Division Manual was last amended on March 31, 2010. The Division Manual is properly attributable to the Division as an institution. The Division filed two administrative complaints against Mr. Dawson for violations of section 550.2415, which are pending before DOAH with case numbers 14-4450PL and 14-4719PL. Trainers of dogs with a positive urine test can face severe sanctions. As a greyhound trainer, Mr. Dawson's responsibilities include feeding the dogs, examining them for injuries, keeping them at the proper weight, preparing them for weigh-in before each race, and keeping them healthy. Occasionally, he also personally takes the dogs to the track. On a race day, the dogs are typically walked, cleaned up by a kennel helper, weighed-in, and then given to the "leadouts." Leadouts are not employed by the individual kennels, but are employed by the track. The leadouts place the dogs in the ginny pit area, sometimes called the lock-up, an area where the dogs stay until their scheduled race. Trainers and kennel helpers are not allowed in the ginny pit area. Trainers and helpers therefore have no access to their dogs for an extended period of time until the race begins and have no control over the employees of the track (leadouts and kennel master) who do have access to the dogs during that time. Pre-race urine specimens are randomly taken from dogs in an outdoor, fenced area adjacent to the ginny pit building by veterinary assistants employed by the Division. This area is open to view by the public, including trainers or their helpers, but only track employees and Division personnel are allowed access to the area. The area where trainers have to be to pick up their dogs is on the opposite side of the building, and from this location, the view of the open area where samples are taken is blocked by the building. Trainers and helpers are routinely occupied with their other dogs and do not have time to watch the pre-race sample collection, especially since they do not know if one of their dogs will be sampled or not. The Division does not individually notify each trainer of record or kennel worker for racing animals when random pre- race urine collection will occur. Trainers and kennel workers are not advised that their greyhounds are going to be tested on a particular day. The Palm Beach Kennel Club does not have video cameras in place that would allow trainers or their helpers to view the dogs while they are in the ginny pit area. Mr. Arthur Agganis, as president of the Palm Beach Greyhound Association, petitioned the general manager to put in some cameras, at the association's expense, but no cameras have been installed. There is a camera in the open area where samples are collected, but trainers and helpers cannot view the feed from this camera. In horseracing, horse trainers are not prohibited from physically accessing their horses prior to the start of each horse's race. As the southern regional manager of greyhound tracks, Mr. Callejas visits the tracks under his responsibility and ensures that each track is following the Division Manual's sampling and testing procedures, including the chain-of-custody procedures. Ms. Jill Blackman testified that the Division Manual was a guideline used for training veterinary assistants in the field. Section 3 of the Division Manual ("Section 3") consists of nine subsections: 3.1 Greyhound Sampling Priority; 3.2 The Collection Process; 3.3 Meeting and Identifying the Greyhound; 3.4 Collecting the Specimen; 3.5 Sealing the Sample; 3.6 Completing the Required Forms; 3.7 Storing the Sample; 3.8 Preparing Samples for Shipment; and 3.9 Shipment of Samples. After the veterinary assistant identifies the dog and collects the sample, the sample is sealed in the cup with evidence tape, labeled, and taken to a freezer in the veterinary assistant's office, where it is locked up. Section 3 does not require the Division to advise trainers of when urine sample collection occurs. Section 3 does not require the Division to ensure that the trainer witness the urine sample collection process or to ensure that the Division obtain the trainer's signature on the specimen card. The Division Manual states on page six that one of the primary duties of the veterinary assistant is to "study and put into practice the procedures outlined in this manual." It goes on to emphasize the importance that all those collecting urine samples understand the proper procedures, and "follow those procedures EACH AND EVERY TIME." Section 3 states at page ten, "Those collecting samples must follow strict chain-of-custody procedures in order to stand as credible evidence in a judicial proceeding." It then goes on to prescribe a "strict sequence of events" that must be followed to ensure that samples are properly collected, sealed, and secured to avoid tampering or alteration. It sets forth procedures to correctly identify a greyhound by the numbers tattooed on its ear, prepare required forms, store collected samples, prepare them for shipment, and maintain the security of the backside areas. Division employees do not have discretion not to follow the Division Manual; its provisions are mandatory and enforced by the Division. The integrity of greyhound racing in Florida is important to citizens betting on the outcome of races and to the dog owners, trainers, and other employees who earn their livelihood in the industry. The procedures followed to collect samples and otherwise ensure the integrity of the sport are important to dog trainers and to the public. A notice of rule development for existing rule 61D- 6.005, entitled Procedures for Sampling of Racing Animals, has been published. Mr. Dawson, as a dog trainer subject to possible discipline under the "absolute insurer" rule, 61D-6.005, is substantially affected by the sample collection and testing procedures of Section 3. He has alleged a real and sufficiently immediate injury in fact. Chapter 550 contains procedures such as "split sampling" to protect trainers and ensure integrity of the testing process, and Mr. Dawson comes within the zone of interest of chapter 550. In his petition, Mr. Dawson sufficiently alleged that Section 3 of the Division Manual was an unadopted rule and attached a copy of it to his petition. Section 3 constitutes a rule within the definition of section 120.52(16). Section 3, or a substantially similar statement reflecting the Division's sample collection process for racing greyhounds, has not been adopted as a rule under chapter 120. It is practicable and feasible to adopt Section 3 as a rule. Rule 61D-6.005 is uniform in its application and effect. The rule is not vague, does not fail to establish adequate standards for Division decisions, or vest unbridled discretion in the Division. The rule is not arbitrary or capricious.
Findings Of Fact The Division of Pari-Mutuel Wagering of the Florida Department of Business Regulation is an agency charged with responsibility for implementation and enforcement of the statutory framework governing the conduct of pari-mutuel operations in Florida. The Division's agency head is its Director. The Division has initiated proceedings to adopt rules to establish procedures whereby dog racing tracks and jai alai frontons will select dates for matinee performances. Proposed Rule 7E-2.03 relates to the scheduling of matinee programs by dog racing tracks. It provides in pertinent part: The application [the track's application for an annual license, operating dates, meetings and the number of performances] shall designate the matinee programs to be conducted by the association. Each association shall be permitted during its authorized meeting to conduct a maximum of 54 matinee programs on the days of its choice. Provided, however, that no association located in a county where there is a thoroughbred association or within a radius of 35 miles of another pari-mutuel association shall be permitted to conduct more than 3 matinee programs during any calendar week of its authorized meeting, except that a matinee program can be scheduled on New Year's Day, Memorial Day, July 4th, Labor Day and Thanksgiving Day. Provided, further, that in those counties where a thoroughbred association is authorized to have dark during its meeting all other pari-mutuel associations in the same county may conduct their matinee programs on any or all such dark days as long as the total for the respective association does not exceed 54 matinee programs. Proposed Rule 7E-3.03(32) relates to selection of matinee dates by jai alai frontons, and contains language that is functionally identical to Proposed Rule 7E-2.03. The effect of these proposed rules would be to allow dog racing tracks and jai alai frontons to schedule up to fifty-four matinee programs during their authorized operating dates. If the track or fronton is located in a county where there is a horse racetrack, no more than three matinee programs can be scheduled during any calendar week, except for the designated holidays. The Respondent conducted a public hearing with respect to the proposed rules on January 19, 1981. The Petitioners, Calder Race Course, Inc., and Tropical Park, Inc.; and the Intervenors Gulfstream Park Racing Association and Hialeah, Inc., are horse racetrack operators. These parties are affected by the proposed rules because the proposed rules would allow dog racing tracks and jai alai frontons to operate matinee programs at the same time that horse race programs are being run by these parties. The Intervenors WJA Realty; Biscayne Kennel Club, et al.; and St. Petersburg Kennel Club are operators of dog racing tracks or jai alai frontons. They are affected by the proposed rules because the proposed rules would allow dog racing tracks and jai alai frontons to operate matinee programs at the same time that horse race programs are being run by these parties. The horse racetrack parties are located in Dade County or Broward County, Florida. They conduct only daytime, matinee programs. The dog track and jai alai fronton parties, other than St. Petersburg Kennel Club, Inc., operate in Dade County and Broward County, Florida. They are all located within a radius of thirty-five miles of other pari-mutuel associations, and in the same county with thoroughbred associations. Prior to 1970, dog tracks and jai alai frontons in Southeast Florida conducted nighttime programs almost exclusively. Horse track operators conducted, and continue to conduct, only matinee programs. During the decade of the 1970's, dog tracks and jai alai frontons began conducting an increasing number of matinee programs under various regulatory systems imposed by the Division of Pari-Mutuel Wagering, or its predecessors. In 1978 the Division adopted a policy which is in all material respects identical to the policy that the Division is seeking to implement through the adopting of the rules which are the subject of this proceeding. While it appears to have been the Division's intent to adopt the policy as a rule in 1978, the policy was never formally filed with the Office of the Secretary of State, and was therefore not adopted as a rule. It has, nonetheless, been in operational effect since 1978. The Division's experience with the policy has been favorable. Dog track and jai alai fronton operators have chosen days for operating matinee programs which are most profitable. The State obtains revenue from these operations based upon a percentage of the "handle" or the dollar volume that goes through a facility on a given day. The more money an operation takes in, the more revenue the State obtains. The State's experience with the matinee policy has been favorable from a revenue generating perspective. Horse track operators are to some degree affected by having dog tracks and jai alai frontons operating conflicting matinee programs. The degree of this effect has not been established with any precision. Horse track operators have experienced operational difficulties during the past decade. Many factors have contributed to these difficulties. It has not been established that having matinee competition from dog tracks and jai alai frontons has been a significant factor. Various statistics were presented by the parties in an effort to show either that matinee competition has resulted in a diminution of the handle of horse racetracks, or the contrary. The statistics were not prepared in such a manner as to isolate the impact of matinee competition upon the revenues of horse racetracks. Even if any such findings could be isolated from the statistics that have been presented, the conclusions would be conflicting. Certainly having competition drains some customers from horse racetracks. The extent of this impact cannot, however, be determined from the evidence presented in this proceeding.
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.
The Issue The Petitioner has accused Respondent, Francis Clifford Joyce, with a violation of Rule 7E-1.06(11)(a), Florida Administrative Code, which reads: (a) The running of a horse in a race with any narcotic, stimulant, depressant or local anesthetic is prohibited. If the stewards shall find that any narcotic, stimulant, depressant or local anesthetic has been administered or attempted to be administered, internally or externally, to a horse before a race, such stewards/ shall impose such punishment and take such other action as they may deem proper under any of the rules, including reference to the Division, against every person found by them to have administered, or to have attempted to administer, or to have caused to be administered, or to have caused an attempt to administer, or to have conspired with another person to administer, such narcotic, stimulant, depressant or local anesthetic. If the Division laboratory shall find a positive identification of any such medication, such finding shall constitute prima facie evidence that such horse raced with the medication in its system. Under the accusation, the Respondent is made responsible pursuant to the provisions of Rule 7E-1.18(3), Florida Administrative Code, which indicates that "The trainer shall be responsible for, and be the insurer of the conditions of the horses he enters. Trainers are presumed to know the rules of the Division." Specifically, Respondent Joyce is accused under facts that allege that on December 2, 1978 the horse Sensinita, trained by the Respondent, did race in the tenth (10th) race at Tropical Park Inc., finishing in the second (2nd) position. Subsequent to the race on the same date, a urine specimen was taken from the horse, Sensinita, and assigned sample number 509910A, and that specimen was allegedly analyzed by the Petitioner's laboratory. It is further alleged that on February 20, 1979, the Division of Pari-Mutuel Wagering laboratory reported the results of the test and that report showed that the urine sample contained Despropionyl Fentanyl, which is classified as a derivative of Fentanyl, a narcotic.
Findings Of Fact This cause comes on for consideration based upon a Notice to Show Cause (Administrative Complaint) filed by the Petitioner, State of Florida, Department of Business Regulation, Division of Pari-Mutuel Wagering, against Francis Clifford Joyce. At all times pertinent to the Administrative Complaint, Francis Clifford Joyce was a holder of License Numbers K-4547, K-4201 and K-575 issued by the Petitioner to Respondent, Francis Clifford Joyce, to operate as a horse trainer for horses racing at the various race tracks located in the State of Florida. The Petitioner, State of Florida, Department of Business Regulation, Division of Pari-Mutuel Wagering, is an agency of the State of Florida charged with the duty of the regulation of, among other things, the matters pertaining to thoroughbred horse racing in the State of Florida. The authority for such regulation is found in Chapter 550, Florida Statutes, and those rules promulgated to enforce the provisions of that chapter. Included in that body of rules are Rule 7E-1.06(11)(a) and 7E-1.18(3), Florida Administrative Code, alluded to in the issue statement of this Recommended Order. Those rules as set out in the issue statement shall serve as a basis for determining the facts and reaching the legal conclusions necessary to formulate a decision in this matter and official recognition is taken of the aforementioned rules. Facts in the case reveal that the Respondent, Francis Clifford Joyce, was operating in his capacity as a trainer on December 2, 1978, at the Tropical Park, Inc. race course in Florida. On that date a horse for which he was the trainer, named Sensinita, ran in the tenth (10th) race and finished in second (2nd) place. On the date of the race and prior to the race the horse was seen and treated by a veterinarian, Carl J. Meyer, DVM. This included a treatment for a condition which Dr. Meyer described as Myopathy. In actuality, Dr. Meyer injected the horse with Sublimaze under the guise of treating the horse for Myopathy. A urine sample taken from the horse shortly after the conclusion of the race and on the same data as the race was examined by a series of tests, and the urine sample revealed a positive identification of a substance known as Despropionyl Fentanyl, which is classified as a derivative of Fentanyl, a narcotic. This particular narcotic, Fentanyl, metabolizes to become Despropionyl Fentanyl, a central nervous system stimulant in horses. The trade name for Fetanyl is Sublimaze. The Respondent did not know that Dr. Meyer had injected Sensinita with the substance, Sublimaze, on the date of the race. Respondent had made inquiry of Dr. Meyer concerning treatment for Myopathy in October, 1978, related to the horse, Hawaiian Gardens. At that point, Dr. Meyer indicated that treatment for Myopathy was a treatment for the horse's nervous system. Subsequent to this discussion, the Respondent read an article related to allegations against other trainers who had been accused of violating the same provisions as set out in the present Notice to Show Cause, dealing with the same alleged narcotic. Among those individuals was one Frank Rudolph Solimena. Shortly after finding out about the allegations related to the other trainers, Respondent approached Dr. Meyer and asked him if he had given Hawaiian Gardens the same substance which Respondent thought Dr. Meyer might have given Solimena's horses. Dr. Meyer denied giving Hawaiian Gardens Sublimaze and told the Respondent not to worry about anything. The Respondent then became informed of a newspaper article claiming that the narcotic, Fentanyl/Sublimaze, had been given to his horse, Hawaiian Gardens, prior to running a race on October 16, 1978. Following this publication, a Notice to Show Cause was filed, a formal hearing was held and a Recommended Order was entered in DOAH. Case No. 79-228, now on review for final order. Prior to any notification by the Petitioner or through the media that a positive sample had bean allegedly detected in the test of the urine sample of Hawaiian Gardens, Respondent ceased to use Dr. layer to treat his horses and, effective December 4, 1978, the Respondent began using a Dr. Teigland, DVM. On or about February 20, 1979, Joyce received notice of the positive urine sample related to Sensinita's race which is the subject herein. On June 22 or 23, 1978, following the formal hearing on the subject of the horse, Hawaiian Gardens, and its race of October 16, 1978, Joyce again spoke with Dr. Meyer about his possible use of illegal narcotics in the horses Joyce was training. Dr. Meyer laughed and responded to the effect that the Respondent would not have a problem with prosecution for horses Meyer had treated. In summary, it is evident that Sensinita ran in the tenth (10th) race at Tropical Park, Inc. on December 2, 1978, at a time when the substance, Dispropionyl Fentanyl, was in its system and this had resulted from Dr. Meyer's infusion of Sublimaze. Joyce had no knowledge of Dr. Meyer's intentions on that date or the act of infusing the horse, nor did the Respondent have any reason to believe that the horse would be infused with Sublimaze.
Recommendation It is recommended that the case against the Respondent, Francis Clifford Joyce, related to the incident of December 2, 1978, involving the horse, Sensinita, be DISMISSED DONE and ENTERED this 5th day of September, 1979, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: W. S. Frates, Esquire FRATES, FLOYD, PEARSON, STEWART, RICHMAR & GREER One Biscayne Tower 25th Floor Miami, Florida 33131 David M. Maloney, Esquire Francis Clifford Joyce Department of Business 1015 South 17th Avenue Regulation Hollywood, Florida 33020 725 South Bronough Street Tallahassee, Florida 32301
The Issue This is a license discipline case in which the Petitioner seeks to take disciplinary action against a licensee on the basis of allegations in an Administrative Complaint in which the Respondent is charged with two violations of Section 550.2415(1)(a), Florida Statutes.
Findings Of Fact The Petitioner is the State of Florida, Department of Business of Professional Regulation, Division of Pari-Mutuel Wagering (Division) which is created by Section 20.165(2)(f), Florida Statutes. The Respondent, Douglas J. Levkoff, is the holder of an unrestricted U-1 Professional Pari-Mutuel License, License Number 10311836-1081, issued by the Division on or about July 1, 2000. West Flagler is a permitholder authorized to conduct greyhound racing and pari-mutuel wagering in the State of Florida. On September 9, 2000, the Respondent was the trainer for a racing greyhound named "Dodge A Ram." The racing greyhound "Dodge A Ram" finished third in the ninth race of the evening performance of West Flagler on September 9, 2000. Immediately after the race a urine sample was collected from "Dodge A Ram." The urine sample was assigned sample number 651573. The University of Florida Racing Laboratory tested urine sample number 651573, and found it to contain Benzoylecgonine.1 On September 23, 2000, the Respondent was the trainer for a racing greyhound named "Izz Our Patsy." The racing greyhound "Izz Our Patsy" finished first in the sixth race of the matinee performance of West Flagler on September 23, 2000. Immediately after the race a urine sample was collected from "Izz Our Patsy." The urine sample was assigned sample number 652144. The University of Florida Racing Laboratory tested urine sample number 652144, and found it to contain Benzoylecgonine.2 Benzoylecgonine is a metabolite of Cocaine. It is the primary marker of Cocaine in forensic technology. The metabolite Benzoylecgonine is not produced by any drug other than Cocaine. Cocaine is a Class 1 drug according to the Association of Racing Commissioners International classification system. The Respondent is the trainer of record for Sun Coast Kennels, which provides greyhounds for racing to West Flagler Greyhound Track. He is listed as the trainer for Sun Coast Kennels on the kennel personnel roster filed with the Racing Secretary at West Flagler. Sun Coast Kennels is assigned kennel number 17 by West Flagler for identification purposes. Specifically, the Respondent provided the names of "Dodge A Ram" and "Izz Our Patsy" to West Flagler through a listing of available greyhounds and an official schooling, respectively.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Division of Pari-Mutuel Wagering enter a final order in this case suspending the Respondent's license for a period of twenty days, imposing an administrative fine in the total amount of $200.00, and requiring the return of any purse that was received by the Respondent as a result of the two races at issue in this case. DONE AND ENTERED this 12th day of June, 2001, in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH 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 12th day of June, 2001.
The Issue Whether Respondent committed the offenses alleged in the Amended Administrative Complaint and the penalties, if any, that should be imposed.
Findings Of Fact Respondent is a veterinarian licensed in the State of Florida. On October 8, 1990, Respondent received pari-mutuel wagering occupational license number 0364610-1046 from the Petitioner. Respondent held this pari-mutuel wagering occupational license at all times pertinent to this proceeding. Petitioner is the State agency responsible for the regulation of the horse racing industry in the State of Florida. At all times pertinent to this proceeding, Respondent worked as a racetrack veterinarian at Pompano Harness Track (Pompano Track) in Pompano Beach, Florida. James Gabriel is a sixteen year veteran of the Fort Lauderdale, Florida, Police Department. During the latter part of 1992, Officer Gabriel began an undercover investigation at Pompano Track as part of his duties with the Metropolitan Organized Crime Intelligence Unit. Officer Gabriel posed as a convicted felon who was the owner of the horse Yankee Roughneck. Horse owner Herman Berger registered Yankee Roughneck in his (Berger's) name since as a convicted felon, Officer Gabriel's undercover persona would not be allowed to register as the true owner. Mr. Berger was a target of Officer Gabriel's undercover investigation and did not know that Officer Gabriel was in fact a police officer. Officer Gabriel and Mr. Berger were in contact with one another on almost a daily basis between November 1992 and May 1993. Mr. Berger owned the horse You've Got The Time. Officer Gabriel's undercover investigation lasted approximately one year and was electronically monitored so that conversations in which Officer Gabriel was a part were tape recorded without the knowledge of the other participants in the conversation. At all times pertinent to this proceeding, Yankee Roughneck and You've Got The Time were standard bred horses that raced at Pompano Track. On the morning of May 24, 1993, Officer Gabriel met with Mr. Berger and discussed having Respondent give Yankee Roughneck a substance to make him run faster. Mr. Berger referred to the substance to be given to Yankee Roughneck as being a "malt". A malt is also known as a "milkshake" and as an "ionic boost". Later that same day Officer Gabriel came into contact with Respondent when Respondent arrived at Pompano Track at the stable of Charlie Giamanco, the trainer of Yankee Roughneck. Respondent was at the stable to treat Yankee Roughneck for an injury that occurred when the rail of a jog cart broke and a splinter stabbed Yankee Roughneck in the shoulder. Officer Gabriel was in the presence of Mr. Berger and Mr. Giamanco when Respondent arrived at the stable. Respondent did not know Officer Gabriel, but he knew that Officer Gabriel was a colleague of Mr. Berger. Officer Gabriel engaged in a conversation with Respondent which was electronically monitored by equipment in good working order. The following conversation among Respondent (P.P.), Officer Gabriel (J.G.), Mr. Berger (H.B.), and Mr. Giamanco (C.G.) was taped. This conversation pertains to racing Yankee Roughneck and ways to enhance the horse's performance. P.P.: If the horse the ah, had he been milkshaked before did he race well when he was milkshaked? Not every horse races well when they get bagged. (Unintelligible.) H.B.: He came, he raced but not the way he supposed (sic) to. P.P.: I'll speak with Charlie tomorrow morning. Well the only thing to do is to try it one start. H.B.: Yes. P.P.: Not (sic) that expensive to do. (Unintelligible.) H.B.: Exactly. P.P.: If the horse improves. H.B.: Alright (sic). J.G.: How long does it take before we do something like that for (unintelligible). P.P.: Two and a half hours before the race. Thereafter, Respondent made the following statement: P.P.: OK, the same thing that we used to, when we used to pass the tube, you know, but now, we can't pass the tube. What we're doing is giving it orally. Mix the stuff up put it in their dose syringe. Put it on the back of their tongue a hundred and eighty c.c. and (unintelligible) even in the states where they have the black box, it won't test positive, pass the stomach tube and dump that whole big load in him shows on the box. Subsequently in the conversation, the following dialogue occurred: H.B.: And we going (sic) to do for Yankee Roughneck (unintelligible). J.G.: Well, what day do we want to do that? When we find out when he's, I think he's in Thursday. P.P.: Okay. H.B.: We'll find out today. P.P.: (Unintelligible) check with Charlie and the day he gets in. H.B.: Yeah. The milkshake referred to by Respondent and by the other participants in this conversation is a liquid concoction that includes a mixture of sodium bicarbonate. As described by Respondent, the mixture would thereafter be given the horse by dose syringe. This mixture is given to a racehorse in the hopes of enhancing the horse's performance during the race. In the amounts discussed by Respondent, sodium bicarbonate meets the definition of a "medicine" within the meaning of Section 550.235(2), and Section 550.2415(1)(a) and (8), Florida Statutes. The evidence established that sodium bicarbonate raises the ph level in the horse beyond the normal physiological range and can be expected to delay muscle fatigue in a horse by buffering the buildup of lactic acid in the muscle during periods of exercise. The horse can be expected to run faster because the onset of fatigue will be delayed. An improvement of one to two seconds can be expected in the horse's racing time, which equates to approximately five lengths in a harness race. Sodium bicarbonate is also administered to racehorses to prevent a condition formally known as exertional rhabdomyolisis and informally referred to as "tying up". The onetime administration of sodium bicarbonate shortly before race time under the facts of this case was to enhance the horse's performance and not to prevent tying up. If the prevention of tying up had been the goal, small amounts of sodium bicarbonate would had been added to the horse's food over an extended period of time. The Respondent's reference to the "black box" in the taped conversation is to a device employed by many race tracks to test whether a horse has been "milkshaked" or otherwise improperly medicated. Pompano Track did not use a blackbox. The Respondent's reference to "tubing" a horse is a prohibited practice whereby a stomach tube is passed through the horse's mouth and into the stomach. The "milkshake" is thereby pumped directly into the horse's stomach. The tubing of a race horses is a practice prohibited by rule adopted by Petitioner. The tubing rule was adopted by Petitioner in an effort to stop the practice of tubing horses by grooms or trainers who have inadequate training and to prevent the practice of milkshaking horses. Typically, more of the concoction would be administered by tubing than by using the dose syringe. The evidence established that the amount of sodium bicarbonate discussed by Respondent is sufficient to enhance the horse's performance. Administering the "milkshake" by syringe, as Respondent said he would do, would not violate Petitioner's rule against tubing a horse. Administering the "milkshake" by syringe, as Respondent said he would do, would constitute the administration of a medication within twenty-four hours of a race in violation of Section 550.2415(8), Florida Statutes. The Thursday referred to in the conversation is May 27, 1993, the day that Yankee Roughneck was next scheduled to race. On May 27, 1993, Dr. Michael Carinda, a veterinarian who was in practice with Respondent, brought a "milkshake" to Yankee Roughneck's stable. A groom thereafter administered the milkshake to Yankee Roughneck in the manner described by Respondent. Yankee Roughneck placed third in his race, but he ran slightly slower than he had in his previous race. The evidence did not establish that Respondent agreed to "milkshake" the horse You've Got The Time within twenty-four hours of a race.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order that adopts the findings of fact and conclusions of law contained herein. IT IS FURTHER RECOMMENDED that Petitioner's Final Order find Respondent not guilty of the offenses alleged in Counts One, Four, Five, and Six of the Amended Administrative Complaint. IT IS FURTHER RECOMMENDED that Petitioner's Final Order find Respondent guilty of the offenses alleged in Counts Two and Three, suspend Respondent's occupational license for a period of one year, and assess against Respondent an administrative fine in the amount of $2,000. DONE AND ENTERED this 12th day of December, 1994, 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 12th day of December 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-5993 The following rulings are made on the proposed findings of fact submitted by the Petitioner. The proposed findings of fact in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 13, 20, 21, 26, and 30 are adopted in material part by the Recommended Order. The proposed findings of fact in paragraph 11 are adopted in part by the Recommended Order and are rejected in part as being unnecessary to the conclusions reached. The proposed findings of fact in paragraphs 14, 15, 16, 17, 18, 19, 22, 23, 24, 25, 27, 28, 29, 31, 32, 33, 34, 35, 37, 38, 39, 41, 42, 43, 44, 45, and 46 are rejected as being subordinate to the findings made. The proposed findings of fact in paragraph 36 are rejected as being unnecessary to the conclusions reached. The proposed findings of fact in paragraph 40 are adopted in part by the Recommended Order, but are rejected in part as being argument that is subordinate to the findings made. The following rulings are made on the proposed findings of fact submitted by the Respondent. The proposed findings of fact in paragraphs 1, 2, 3, 4, 11, and 15 are adopted in material part by the Recommended Order. The proposed findings of fact in paragraphs 5 and 8 are rejected as being unnecessary to the conclusions reached. The composition of the concoction referred to as a "milkshake" was described in the Amended Administrative Complaint and was established at the formal hearing. The proposed findings of fact in paragraph 6 are rejected as being contrary to the findings made. The proposed findings of fact in paragraph 7 are subordinate to the findings made. The proposed findings of fact in paragraphs 8, 12, and 13 are rejected as being argument. The proposed findings of fact in paragraphs 9 and 10 are rejected as being unnecessary to the conclusions reached or as being contrary to the findings made. The proposed findings of fact in paragraphs 14 and 16 are rejected as being argument that is contrary to the conclusions reached or to the findings made. COPIES FURNISHED: Richard A. Grumberg, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32308 Karen C. Amlong, Esquire William Amlong, Esquire Amlong and Amlong 500 Northeast 4th Street, 2nd Floor Fort Lauderdale, Florida 33301 Dr. Paul R. Plante 1450 Southwest Third Street Pompano Beach, Florida 33069 William E. Tabor, Director Division of Pari-Mutuel Wagering 1940 North Monroe Street Tallahassee, Florida 32399-0792 Jack McRay, Acting General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether the Order of Summary Suspension of Respondent's license as a greyhound trainer filed September 20, 2002, is appropriate.
Findings Of Fact The Department presented the laboratory reports from the University of Florida, College of Veterinary Medicine, Racing Laboratory, showing positive test results in seven samples for Benzoylecgonine, a metabolite of cocaine. Cocaine is a topical anesthetic and a Class 1 drug. The Benzoylecgonine was found in the following samples: 865286, 865667, 865724, 865725, 889275, 889359, and 889492. The Department presented documentation establishing that all the samples were taken from greyhounds that raced at Naples-Fort Myers Greyhound Track, identified as Track 142. Petrillo was the trainer for the greyhounds at the time the samples were taken and, as the owner's witness, witnessed the taking of the samples after each greyhound had completed its race. Petrillo was issued a greyhound trainer's license, number 1558181, by the Department on May 4, 2002. Petrillo denied that he administered the drug to the animals. According to his testimony, others may have had access to the greyhounds prior to the races in which the dogs participated.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered continuing the summary suspension of Steven M. Petrillo's license until the entry of a final order on the pending administrative complaints. DONE AND ENTERED this 18th day of October, 2002, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND 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 18th day of October, 2002. COPIES FURNISHED: Joseph M. Helton, Jr., Esquire Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-2202 Steven M. Petrillo 17401 Butler Road Fort Myers, Florida 33912 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202 David J. Roberts, Director Division of Pari-Mutuel Wagering Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
