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 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 The issue in this case is whether Respondent's license should be summarily suspended in accordance with Subsection 550.2415(3)(b), Florida Statutes (2006).
Findings Of Fact The Division is the agency of the state responsible for monitoring and regulating all aspects of pari-mutuel wagering activities. One of its responsibilities is the testing of greyhound dogs for prohibited substances. Michaud holds pari-mutuel wagering license number 16293-1021 as a greyhound trainer. On June 23, 2006, Michaud was the registered trainer of a greyhound known as "Ikes Trudy." Michaud was working at the Sanford Orlando Kennel Club (also known and hereinafter referred to as "CCC Racing"). Ikes Trudy ran in the seventh race at CCC Racing on June 23, 2006, finishing fourth or fifth in that race. Upon conclusion of the race, a urine sample was taken from Ikes Trudy by a Division employee. The sample was taken in an area of CCC Racing set aside for that purpose. The testing site was not covered, i.e., it was open to the elements. However, there was no evidence of inclement weather at the time the test sample was taken. At the conclusion of each greyhound race, the winning dog is always tested. It is normal for the Division to randomly select another dog from the same race for testing as well. In this case, however, Ikes Trudy was specifically selected for testing by the Division. No other dog was randomly sampled. After the urine sample had been taken, a "Urine Sample Card" was completed by the Division employee, signed by Michaud, and placed in a coin envelope. The urine sample card identifies the greyhound as Ikes Trudy, the race track as CCC Racing, and the trainer as Michaud. The urine sample was then duly-processed and tested in accordance with procedures established by the Division. The test was performed at the University of Florida Racing Lab, a certified and accredited testing facility. David M. Tiffany supervised the testing procedure and signed the Report of Positive Result on the test sample. The test determined the presence of two metabolites of cocaine in the urine sample: Benzoylecgonine ("BZE") and Ecgonine Methyl Ester ("EME"). Cocaine is a Class 1 drug and is a prohibited substance in racing greyhounds. The BZE concentration in the sample was greater than 720 nanograms per milliliter or 720 ng/mL. The EME concentration was 62.9 ng/mL. The normal or average concentration of these metabolites, when found in a greyhound, is between 10 and 50 ng/mL. The highest level Mr. Tiffany had ever seen was approximately 120 ng/mL of BZE and that was in this same animal, Ikes Trudy. The question of how such a high concentration of these metabolites would affect an animal was not resolved at the final hearing. Michaud suggested such a level would kill the animal; Mr. Tiffany could not confirm that suggestion as factual. Mr. Tiffany did not think the extremely high concentration of metabolites in this test raised any questions about the testing process or its results.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering upholding the summary suspension of the license of Chad E. Michaud. DONE AND ENTERED this 28th day of August, 2006, 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 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of August, 2006. COPIES FURNISHED: Stefan Thomas Hoffer, Esquire Department of Business and Professional Regulation Division of Pari-Mutuel Wagering 1940 North Monroe Street Tallahassee, Florida 32399-2202 Chad E. Michaud 27 Jackson Court Casselberry, Florida 32707 Josefina Tamayo, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 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
The Issue Whether the FHBPA, FTBOA, and OBS have standing to bring this unadopted rule challenge; and, if so, whether their petition was timely; and, if so, whether the Division’s determination that a new summer jai alai permit was made available and that Calder is eligible for a new summer jai alai permit pursuant to section 550.0745(1), Florida Statutes (2019), is based on unadopted rules.
Findings Of Fact Parties/Standing The Division is the agency charged with regulating pari-mutuel wagering and issuing pari-mutuel permits under the provisions of chapter 550, including section 550.0745 pertaining to summer jai alai permits, and rule 61D-4.002. Calder is a pari-mutuel permitholder authorized to operate thoroughbred horse racing and conduct pari-mutuel pools on exhibition sports in Miami-Dade County pursuant to chapter 550. Calder has been a pari- mutuel permitholder authorized to operate thoroughbred horse racing in Miami-Dade County since 1971. The Division issued a new summer jai alai permit to Calder on February 9, 2018. The Division did not provide FHBPA, FTBOA, or OBS with formal notice that Calder had applied for a new summer jai alai permit or that the Division intended to issue a new summer jai alai permit to Calder. The Division subsequently licensed Calder to operate this summer jai alai permit in fiscal years 2018/2019 and 2019/2020. Calder is currently licensed to operate both summer jai alai and thoroughbred racing at its Miami-Dade County facility pursuant to the permits and licenses issued by the Division to Calder for thoroughbred horse racing and summer jai alai. Calder is also currently licensed to operate slot machine gaming. Calder receives approximately $85,000,000 in annual gross revenues from slot machine gaming, making this the most profitable activity Calder conducts at its facility. FHBPA is not a pari-mutuel permitholder. FHBPA is a Florida not-for- profit corporation and an association whose membership consists of a majority of horse owners and trainers (approximately 5,000 to 6,000 "horsemen"), whose horses race at thoroughbred race meets operated by the licensed thoroughbred permitholders in South Florida. Pursuant to section 551.104(10)(a)1., Florida Statutes, no slot machine license or renewal license can be issued to an applicant with a thoroughbred horse racing pari-mutuel permit unless the applicant has on file with the Division a binding, written agreement with FHBPA governing the payment of purses on live thoroughbred horse races conducted at the licensee’s pari- mutuel facility. FHBPA and Calder have a contractual agreement, whereby Calder must run 40 days of thoroughbred horse races under its thoroughbred license. Under the current agreement between Calder and FHBPA, Calder is required to pay FHBPA a sum equal to ten percent of Calder’s gross slot machine revenues to be used for purses. This amounts to approximately $9,000,000 that FHBPA receives from Calder on an annual basis. This contractual agreement expires in 2020. Since 2014, Calder has satisfied its obligation to run a 40-day thoroughbred racing schedule by contracting with a third party, Gulfstream Park, to run races between October and November of each year. FTBOA is not a pari-mutuel permitholder. FTBOA is a Florida not-for- profit corporation, and the statewide trade association representing the interests of Florida thoroughbred breeders and owners in Florida. Horses owned and/or bred by FTBOA members participate in the thoroughbred horse races at Calder’s race course. FTBOA is designated in section 550.2625(3)(h) as the administrator of the thoroughbred breeders’ awards program established by the Florida Legislature in sections 550.26165 and 550.2625(3). As part of this program, FTBOA is responsible for the payment of breeders’ awards on thoroughbred races conducted in Florida. Pursuant to section 550.26165(1), the purpose of breeders’ awards is to "encourage the agricultural activity of breeding and training racehorses in this state." Pursuant to section 551.104(10)(a)1., no slot machine license or renewal license can be issued to an applicant with a thoroughbred horse racing pari- mutuel permit unless the applicant has on file with the Division a binding written agreement with FTBOA governing the payment of breeders’, stallion, and special racing awards on live thoroughbred races conducted at the licensee’s pari-mutuel facility. FTBOA receives approximately $1,500,000 from Calder each year in breeders’ awards as a result of the Calder racing handle and slot machine revenue. OBS holds a limited intertrack wagering pari-mutuel permit pursuant to section 550.6308 that authorizes it to conduct intertrack horse racing at its Ocala facility. OBS also holds a non-wagering horse racing permit pursuant to section 550.505, and a thoroughbred horse sales license pursuant to chapter 535, Florida Statutes. OBS sells thoroughbred horses at its facility located in Ocala. OBS is the only licensed Florida-based thoroughbred auction sales company in Florida, and it conducts five thoroughbred horse auctions annually. OBS has no pari-mutuel permits located in Miami-Dade County, Florida. On July 31, 2018, Calder filed a Petition for Declaratory Statement with the Division regarding whether it can discontinue the operation of its thoroughbred races and instead operate a full schedule of jai alai performances in order to maintain its eligibility to continue to conduct slot machine gaming. In its petition, Calder made clear its intention to discontinue live thoroughbred horse racing, stating: "Calder desires to discontinue live thoroughbred racing and to obtain a license to operate a full schedule of live jai alai games under its summer jai alai permit. Calder intends on conducting live jai alai games at the same physical location or piece of property where it currently conducts thoroughbred racing." On October 23, 2018, the Division issued its Final Order Granting Declaratory Statement, concluding that Calder may substitute jai alai games in lieu of live horse racing. In its Final Order, the Division also granted FTBOA’s and OBS’s motions to intervene, concluding that FTBOA met its burden of demonstrating associational standing, and that OBS demonstrated its standing pursuant to Agrico Chemical Company v. Department of Environmental Regulation, 406 So. 2d 478 (Fla. 2d DCA 1981). The Division’s Final Order was affirmed on appeal in Florida Thoroughbred Breeders’ Association, Inc. v. Calder Race Course, Inc., 283 So. 3d 843, 845 (Fla. 1st DCA 2019). Calder intends to replace its thoroughbred permit with its jai alai permit as the predicate for maintaining its slot machine gaming permit. An incentive for Calder to substitute its jai alai permit for its thoroughbred permit is that if it stops racing horses after December 2020, Calder will be under no obligation to share the millions of dollars in revenue it receives through its slot machines with FHBPA or FTBOA. FHBPA, FTBOA, and their members will be substantially affected if Calder is allowed to use a summer jai alai permit in place of thoroughbred racing to qualify for the continued operation of its slot machine facility. Millions of dollars that would otherwise be available to FHBPA, FTBOA, and their members through the payment of purses and awards from thoroughbred racing will be lost if Calder is permitted to substitute its underlying pari- mutuel activity from racing thoroughbreds to conducting jai alai games. FHBPA’s and FTBOA’s substantial injury is of a type or nature which this proceeding is designed to protect. Likewise, OBS will be substantially affected if Calder is allowed to use a summer jai alai permit in place of thoroughbred racing. The demand to breed and purchase racehorses, and the value of breeding and selling thoroughbred horses, will decrease significantly as a consequence of Calder discontinuing thoroughbred horse racing and replacing the races with summer jai alai games. In addition, as a guest track, OBS retains seven percent of the wagers placed at OBS on thoroughbred races in Florida. OBS intertrack wagering generally handles approximately $1,000,000 on thoroughbred races conducted at Calder and Tropical Park, which directly results in revenue to OBS. OBS’s substantial injury is of a type or nature which this proceeding is designed to protect. Calder’s Summer Jai Alai Permit Application and the Division’s Proper Calculation of "Play or Total Pool" Under Section 550.0745 On August 31, 2017, Calder submitted an application to the Division for the issuance of a new summer jai alai permit pursuant to section 550.0745(1). The parties stipulate that, at all times material hereto, Calder was a qualified applicant as to all statutory requirements, but for the dispute as to whether a summer jai alai permit was "made available" pursuant to the second sentence in section 550.0745(1). Section 550.0745(1) provides in pertinent part as follows: 550.0745 Conversion of pari-mutuel permit to summer jai alai permit.- The owner or operator of a pari-mutuel permit who is authorized by the division to conduct pari- mutuel pools on exhibition sports in any county having five or more such pari-mutuel permits and whose mutual play from the operation of such pari- mutuel pools for the 2 consecutive years next prior to filing an application under this section has had the smallest play or total pool within the county may apply to the division to convert its permit to a permit to conduct a summer jai alai fronton in such county during the summer season commencing on May 1 and ending on November 30 of each year on such dates as may be selected by such permittee for the same number of days and performances as are allowed and granted to winter jai alai frontons within such county. If a permittee who is eligible under this section to convert a permit declines to convert, a new permit is hereby made available in that permittee’s county to conduct summer jai alai games as provided by this section, notwithstanding mileage and permit ratification requirements. Accompanying Calder’s application was a cover letter stating that the application was for the summer jai alai permit associated with state fiscal years 2005/2006 and 2006/2007. The determination of whether the Division properly granted Calder a new summer jai alai permit pursuant to section 550.0745(1) turns on whether a new summer jai alai permit was "made available" for issuance in Miami- Dade County associated with state fiscal years 2005/2006 and 2006/2007. Whether a new summer jai alai permit was made available, in turn, centers on whether there was a single pari-mutuel permitholder with the "smallest play or total pool" within the county for the two consecutive fiscal years of 2005/2006 and 2006/2007. FHBPA, FTBOA, and OBS maintain that no new summer jai alai permit was made available for issuance in Miami-Dade County for state fiscal years 2005/2006 and 2006/2007, because there was no single Miami-Dade permitholder that had the "smallest play or total pool" in Miami-Dade County during those two consecutive fiscal years. The disagreement between the parties concerning the existence of an available permit with the "smallest play or total pool" in Miami-Dade for the fiscal years 2005/2006 and 2006/2007 centers on their different methods of interpreting section 550.0745(1) and disagreement regarding the types of wagers the Division must use in its calculation of a permitholder’s "play or total pool" pursuant to section 550.0745(1). For purposes of this case, the various types of wagers are summarized as follows: Wagers placed at a permitholder’s facility into the pool conducted by the permitholder on its own live performance are called "live on-track wagers." In addition to wagers placed at a particular facility on its live races or games, bettors may place wagers on races or games occurring offsite through intertrack wagering, which allows bettors at a guest-permit facility in Florida to bet on a race or game transmitted from and performed live at another host- permit facility in Florida. The facility holding the live event is referred to as the "host" track, and the facility taking the wager on the event being held elsewhere is referred to as the "guest" track. Wagers placed at the facility of an out-of-state entity on a live event conducted by a Florida host-permitholder are called "simulcast export wagers." Wagers placed at the facility of a Florida permitholder on a live event occurring at an out-of-state facility are called "simulcast import wagers." Wagers placed at the facility of a Florida guest permitholder on a live event, conducted at an out-of-state facility that is being rebroadcast through a Florida host permitholder’s facility to the Florida guest-permitholder’s facility, are called "intertrack simulcast as a guest." The Florida facility rebroadcasting the out-of-state signal is the intertrack simulcast in-state host. The Division’s calculations of "smallest play or total pool" of permit holders in Miami-Dade County for the two consecutive fiscal years of 2005/2006 and 2006/2007 included the following three types of wagers, only: (1) live wagers; (2) intertrack wagers (a/k/a intertrack wagers as a host); and (3) simulcast export wagers. The Division did not include intertrack wagers as a guest, simulcast import wagers, simulcast intertrack as a guest wagers, or simulcast intertrack as a host wagers in its calculations. In the state fiscal years 2005/2006 and 2006/2007, five or more pari- mutuel permitholders were authorized and licensed by the Division to conduct pari-mutuel pools on exhibition sports in Miami-Dade County. None of them applied to convert their permits to summer jai alai permits. The Division initially determined that West Flagler had the "smallest play or total pool" of permit holders in Miami-Dade County for the state fiscal years 2005/2006 and 2006/2007; and, therefore, concluded that a summer jai alai permit was made available in Miami-Dade County. On February 9, 2018, based on the Division’s determination that Calder was a qualified applicant under chapter 550, and the rules promulgated thereto, and that a permit was available in Miami-Dade County, the Division approved Calder’s application and issued Calder a summer jai alai permit. On November 18, 2018, Calder received an operating license to conduct a full schedule of summer jai alai performances in May and June 2019. On December 9, 2018, the Division received an e-mail from FHBPA’s counsel regarding "Bet Miami," a greyhound dog racing permitholder located in Miami-Dade County, which was authorized to conduct pari-mutuel pools on exhibition sports in both Miami-Dade and Broward Counties in the state fiscal year 2005/2006, and in Miami-Dade County in the state fiscal year 2006/2007. In response to this e-mail, the Division reviewed its records, confirmed the dates that "Bet Miami" operated in Miami-Dade County in the state fiscal year 2005/2006, and calculated the amount that "Bet Miami" pooled in Miami-Dade County in this fiscal year. The Division also reviewed the operating licenses for each of the permitholders in Miami-Dade and Broward Counties and confirmed that "Bet Miami" operated in Miami-Dade County during the entire fiscal year of 2006/2007.1 The Division corrected its data to reflect that "Bet Miami," in fact, had the "smallest play or total pool" in Miami-Dade County for the fiscal years 2005/2006 and 2006/2007. The Division now takes the position that "Bet Miami" had the "smallest play or total pool" in Miami-Dade County for the fiscal years 2005/2006 and 2006/2007. "Bet Miami" declined to convert its greyhound dog racing permit to a summer jai alai permit. The "Bet Miami" permit was never converted nor was an application to convert the "Bet Miami" permit to a summer jai alai permit pursuant to section 550.0745 ever received by the Division. Calder built a jai alai fronton in Miami-Dade County and conducted its first jai alai meet in May and June 2019, pursuant to its operating license. On May 15, 2019, Calder received an operating license to conduct a full schedule of jai alai performances in August and September 2019. FHBPA, FTBOA, and OBS contend that the Division erred in failing to consider all the various types of wagers in its calculation of "smallest play or total pool." According to FHBPA, FTBOA, and OBS, had the Division considered all the various types of wagers, no permit would be available for the fiscal years 2005/2006 and 2006/2007. 1 There is no dispute over the authenticity and accuracy of the financial information supplied by the Division’s annual reports or of the authenticity and accuracy of the "simulcast export" figures supplied by the Division. As set forth in the Recommended Order issued by the undersigned in DOAH Case No. 19-1617, the persuasive evidence presented at hearing established that the Division properly considered only live on-track wagers, intertrack wagers, and simulcast export wagers in its calculations of"smallest play or total pool" under section 550.0745(1). This is because pari-mutuel pools are only formed at the host permitholder’s track where the live race is conducted, pursuant to the annual license that authorizes that permitholder to conduct pari-mutuel pools in that county. Had the Division included the other types of wagers (i.e., intertrack wagers as a guest, simulcast import wagers, simulcast intertrack as a guest wagers, or simulcast intertrack as a host wagers) in its calculations, the handle for these various wager types would be counted twice--at the host and guest tracks. Double-counting the wagering handle would result in the Division substantially overstating the amount of handle received by permitholders.2 As set forth in the Recommended Order in DOAH Case No. 19-1617, the Division properly found that "Bet Miami" had the "smallest play or total pool" based on its calculation of the permit holders’ in Miami-Dade County live wagers, intertrack wagers as a host, and simulcast export wagers for the two consecutive fiscal years 2005/2006 and 2006/2007.3 2 All wagering data is compiled by a totalizator system, such as AmTote, which calculates the overall amount of "handle" collected by each pari-mutuel facility for each transaction. The Division utilizes a sub-system called "Central Monitoring System" ("CMS"), which captures the totalizator wagering data and applies it to a racing monitoring system to calculate the overall handle from each pari-mutuel facility. The Division uses the CMS report to calculate the total amount of wagering handle pooled by a facility in state fiscal years, and together with a review of the pari-mutuel licenses, determines whether a summer jai alai permit was "made available" in that county for the purpose of section 550.0745(1). "'Handle' means the aggregate contributions to pari-mutuel pools." § 550.002(13), Fla. Stat. Handle is not equivalent to revenue or profitability, and a facility’s revenue has no impact on the calculation of a facility’s "play or total pool." 3 As discussed more fully in the Conclusions of Law below, the Division’s method of calculating the "smallest play or total pool" for purposes of section 550.0745(1) is consistent with the clear, unambiguous, and plain language of section 550.0745(1), and Florida appellate decisions.
The Issue The issues in this case are whether Respondent, owner/trainer of record of a greyhound that finished in first place, a greyhound that finished in second place, and a greyhound that finished in third place in three separate races, and two greyhounds that ran and finished out of the money in two separate races, is legally responsible for the prohibited substance found in the urine sample of each of the five greyhounds taken immediately after each race in violation of Section 550.2415(1)(a), Florida Statutes, and if so, what penalty should be imposed.
Findings Of Fact At all times relevant and material to this proceeding, Petitioner, Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering (Division), created by Subsection 20.165(2)(f), Florida Statutes, is the agency responsible for regulation of the pari-mutuel wagering industry pursuant to Section 550.0251, Florida Statutes. At all times relevant and material to this proceeding, Respondent, Gregory H. Mitchell, was the holder of a professional individual occupational pari-mutuel license, number 129829, issued by the Division on July 1, 2002, with an expiration date of June 30, 2002. At all times relevant and material to this proceeding, the Sarasota Kennel Club was a permit holder authorized to conduct greyhound racing and pari-mutuel wagering in the State of Florida and was assigned track number 153 by the Division. The Division of Pari-Mutuel Wagering Form 503 identified the name and location of each race track where a greyhound's urine sample was collected. At all times relevant and material to this proceeding, Respondent was the owner/trainer of record for each of the greyhounds who were entered in races at the Sarasota Kennel Club on the following dates and who had urine samples immediately taken and examined: (1) March 1, 2002, "Fly Bye Pumpkint" finished third in the third race, and the urine sample collected was numbered 842141; (2) March 11, 2002, "Greys Ice Star" finished eighth in the eleventh race, and the urine sample collected was numbered 852361; (3) March 12, 2002, "Fly Bye Pumpkint" finished fifth in the fourth race, and the urine sample collected was numbered 852399; (4) March 13, 2002, "Twilite Hossplay" finished second in the third race, and the urine sample collected was numbered 852439; and (5) April 8, 2002, "Dia's- White-Tip" finished first in the fourth race, and the urine sample collected was numbered 852562. The hereinabove five urine samples were forwarded to the University of Florida Racing Laboratory. The Racing Laboratory tested the urine samples and found that each urine sample tested contained benzoylecognine, a metabolite that is found only in cocaine. Cocaine is a Class I drug according to the Association of Racing Commissioners International Classification System.
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 in this matter revoking the occupational license of Respondent, Gregory H. Mitchell. It is further RECOMMENDED that the following fines be imposed upon Respondent in the amount of $1,000 for the first-place finish violation; $1,500 for the second-place finish violation; $2,000 for the third-place finish violation; $2,500 for the fourth-place finish violation; and $3,000 for the fifth-place finish violation, for a total fine of $10,000. It is further RECOMMENDED that the Division order the purses received by Respondent, as a result of the first-place finish, the second- place finish, and the third-place finish, be returned forthwith to the Division. DONE AND ENTERED this 22nd day of May, 2003, in Tallahassee, Leon County, Florida. FRED L. BUCKINE 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 22nd day of May, 2003. 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 Gregory H. Mitchell 1010 Villagio Circle Sarasota, Florida 34237 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 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue for consideration in this case is whether Respondent’s pari-mutual wagering occupational license number 1102786-1081 should be disciplined because of the matters alleged in the Administrative Complaint filed herein.
Findings Of Fact At all times pertinent to the issues herein, the Department of Business and Professional Regulation, Division of Pari-Mutual Wagering, was the state agency in Florida responsible for the licensing of racing dog kennel owners and trainers and the regulation of the pari-mutual dog racing industry of this state. Respondent, William Kohler, holds an unrestricted “U1” professional pari-mutual wagering occupational license, number 1102786-1081, and was, at all times pertinent, operating under that license as a greyhound trainer at the Sarasota Kennel Club, a pari-mutual wagering race grounds in Sarasota County, Florida. As a licensed trainer of greyhounds, Respondent was responsible for the custody, care, treatment and training of the greyhounds in his care, consistent with the mandate of the Florida Legislature relating to the humane treatment of animals as found in Section 550.2415, Florida Statutes. On or about February 25, 1996, Respondent and his assistant, Brad Adams, were dipping their dogs for flea infestation. During the course of the procedure, as Respondent was working with an animal by the name of Lisa’s Beauty, the dog became uncooperative and resisted being dipped. This procedure was being observed by Josephine Jenkins, also a licensed owner and trainer, who recalled seeing the animal careen off the fence surrounding the area and fall into the dip tank which contained a mix of water and chemicals intended to kill fleas. At hearing, Ms. Jenkins claimed she could not recall whether Respondent threw the dog against the fence or whether the animal got away from him. In a prior sworn statement made to Division investigators, however, she indicated that she saw Respondent hold the dog’s head under the dip and then beat it because it would not behave to his satisfaction. In her earlier statement, she related that she did not see Respondent throw the dog against the fence but only strike her with his open hand and throw her against the dip tub. In light of the consistency of her testimony it is found that Respondent did not throw the dog against the fence nor did he strike the dog with his fist but only with his open hand, and he did hold her head under the dip. In the opinion of Ms. Jenkins and Ms. Nelson, the weather was too cool for dog dipping on February 25, 1996. That same date, Ms. Jenkins also saw Respondent kick another dog which was in the turn out pen at the time. This kick was witnessed by Ms. Nelson who did not see any provocation for the kick. At the time, Respondent was wearing boots. Respondent denies abusing his dogs on the days in question or at any other time. He admits to fighting with his dog on February 25, 1996 because he felt it was necessary to treat them all for fleas which had come in on a new batch of dogs. Because of the infestation, he had to dip all the dogs. To leave one dog undipped would render the entire process worthless. All the dogs would be infested again in a short time. In order to dip the dog in question, he grabbed her by the collar and held her up against the fence so that he could spray her with a bomb. He admits he sprayed her ears but claims he covered her eyes and her mouth so the spray would not get inside. He admits to using sufficient force to overcome the animal’s resistance to being dipped. Respondent claims the weather was not inappropriate for bathing dogs. As he recalls, it was “barefoot and shorts” weather - somewhere around 65 to 70 degrees. Respondent also admits to breaking up a dog fight on February 25, 10996, but claims he did not intentionally kick a dog. He inserted his foot in amongst the dogs in an attempt to break up the fight, but he also claims he has never gone up to a dog and kicked it as discipline or in anger. Respondent claims he makes his living from training dogs and keeping them in good shape. He claims he cannot do that by abusing his dogs, but he admits he will use force to break up a dog fight. With regard to the dog in question, Lisa’s Beauty, she was examined by two veterinarians shortly after the alleged abuse, and neither found any evidence of mistreatment. Though this may indicate no noticeable damage was done, it does not establish that the misconduct alleged did not take place. Considering the testimony as a whole, the undersigned has considered the allegations by Respondent that the statement of Mr. Adams and the testimony of Ms. Nelson were colored by the fact that they were boy and girlfriend and Respondent had recently terminated Mr. Adams’ employment. However, it was evident that Ms. Jenkins’ testimony was given with great reluctance, and considering that she is a qualified and licensed trainer, her appraisal of the Respondent’s actions are given substantial weight. Whereas a layman might consider less than gentle treatment of an animal to be abuse, a trained professional has more insight into what is appropriate treatment, and testimony of such an individual which, as here, indicates abuse, cannot easily be disregarded. Taken together, the evidence of record shows that Respondent intentionally held the dog in question’s head under the surface of the solution, struck it on the head with his open hand, and kicked another dog in the stomach and ribs. Whereas the open-handed striking may not have caused unnecessary pain to the animals in issue, clearly the other actions did, and it is so found.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Division of pari-Mutual Wagering enter a final order suspending Respondent’s occupational license for a period of two weeks, and imposing an administrative fine of $200.00. DONE and ENTERED this 24th day of February, 1997, in Tallahassee, Florida. ARNOLD H. POLLOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6947 Filed with the Clerk of the Division of Administrative Hearings this 24th day of February, 1997. COPIES FURNISHED: James D. Martin, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007 William Kohler 18456 Monet Avenue Port Charlotte, Florida 33948 Lynda L. Goodgame General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Deborah R. Miller Director Department of Business and Professional Regulation Division of Pari-Mutual Wagering 1940 North Monroe Street Tallahassee, Florida 32399-0792
