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
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 presented herein concerns whether or not Respondent unlawfully discriminated against Petitioner, Michael Brown, on the basis of his race.
Findings Of Fact At the outset of the hearing herein, Respondents moved to dismiss the Petition herein based on a claimed lack of jurisdiction over the Respondents because of Petitioner's failure to allege that the Respondents were employers within the meaning of Section 760.02(6), Florida Statutes. Additionally, Respondent, William B. Bryant Company, alleged that the Petition was untimely in that it was not filed within 180 days of the occurrence of the alleged unlawful employment practice as set forth in Rule 22T-9.01(2), Florida Administrative Code. Respondent, William B. Bryant Company, introduced payroll records for all times relevant herein. 1/ An examination of those records reveals that Respondent William B. Bryant Company has not employed 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year. Based thereon, Respondent William B. Bryant Company is not an employer within the meaning of the Human Rights Act of 1977, as amended. Section 23.162(6) and 23.167(10), Florida Statutes (1981). Additionally, an examination of the Station Agreement entered into by and between Greyhound Lines, Inc., a California corporation with offices at 431 Greyhound Tower, Phoenix, Arizona, and William Boyd Bryant, d/b/a William B. Bryant Company, which has a contractual agreement to provide services at Respondent Greyhound Lines, Inc., Ocala, Florida terminal, is not an employer of either Michael Brown, Petitioner, or William B. Bryant Company. Based thereon, it is determined that Respondent Greyhound Lines, Inc. is not an employer of Petitioner within the The meaning of the Human Rights Act of 1977, as amended. Sections 23.162(6) and 23.167(1), Florida Statutes (1981).
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby recommended that the Florida Commission on Human Relations enter a Final Order dismissing the Petition filed herein. RECOMMENDED this 21st day of June, 1984, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of June, 1984.
The Issue The issue is whether Petitioner's Notice of Intent to Withdraw License should be granted or dismissed.
Findings Of Fact At all material times, Respondent has held The Permit, which authorizes Respondent to conduct summer jai-alai performances in Dade County. In 1980, Respondent converted a greyhound racing permit into the Permit, as authorized by a predecessor to section 550.0745, which is discussed in the Conclusions of Law. Each year, as required by section 550.0115, Respondent has obtained an operating license under the Permit to conduct performances, which it has done at the same location named in the Permit. On December 26, 2016, Respondent filed an application for an operating license for 2017-18. This application sought a license to conduct performances in Dania, which is in Broward County. The new location is less than 35 miles from the Dade County location mentioned in the preceding paragraph. Petitioner's employee assigned to examine applications attached a large post-it note to the portion of the application advising of the change in operating location from Dade to Broward county. The note is still attached to the file, which was presented at the final hearing. The note is impossible to miss. On March 10, 2017, Petitioner granted the operating license, which authorizes Respondent to conduct summer jai-alai performances in Dania for the 2017-18 season. In reliance on the 2017-18 operating license, Respondent has terminated its lease for the Dade County facility and entered into a lease for the Dania facility. Following a complaint from the lessor of Respondent's Dade County location, the Division of Pari-Mutuel Wagering (Division) concluded that it had issued the operating license in error, determined that an operating license for a converted permit must be limited to the county named in the converted permit, and issued the NOI on June 1, 2017. Directed to Respondent, the NOI does not allege that Respondent has violated any statute or rule. Instead, the NOI states only that Petitioner issued the operation license "in error as [Respondent] is not authorized to operate summer jai-alai performances via The Permit outside of Miami-Dade County." The NOI never mentions section 550.475. At one time, Petitioner construed section 550.475, which is discussed below, to allow a holder of a county-specific permit to relocate performances to a facility located within 35 miles from the facility, but in another county, and a circuit court has sustained this construction. In the past, Petitioner issued operating licenses to holders of converted or created permits that authorized performances at the licensed location or a facility leased pursuant to section 550.475. It is unclear, though, when Petitioner changed its position. Division directors changed between the issuance of the 2017-18 operating license and the NOI, and it is unlikely that the former director missed the proposed out-of-county relocation described in the application for the 2017-18 operation license. However, these two facts do not preclude a mistake of law, as Petitioner contends, so that the NOI is not necessarily a statement that represents a change in longstanding policy. The NOI states that the operating license is based on a mistake of law, but Petitioner's proposed recommended order states that the operating license is a mistake of law--the same conclusion that the Administrative Law Judge reaches in the Conclusions of Law.
Recommendation RECOMMENDED that Petitioner enter a final order dismissing the Notice of Intent to Withdraw License. DONE AND ENTERED this 12th day of December, 2017, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of December, 2017.
The Issue The issue for disposition in this case is whether proposed Florida Administrative Code Rule 61D-6.0052 (Proposed Rule) is an invalid exercise of delegated legislative authority as defined in section 120.52(8), Florida Statutes.
Findings Of Fact Petitioner is a Florida for-profit corporation operating at the Palm Beach Kennel Club (PBKC) in West Palm Beach, Florida. Petitioner’s members are owners of greyhounds that are raced at the PBKC. Of the 12 greyhound kennels that operate at PBKC, nine are current members of Petitioner. Petitioner’s members each hold licenses issued by the Division pursuant to chapter 550, Florida Statutes. Some of the PBKC kennel owners are themselves licensed greyhound trainers, and some employ licensed trainers. Petitioner’s Articles of Incorporation establish its purposes as including the promotion of “the welfare and care of greyhounds, . . . including, but not limited to, . . . promoting fair regulatory treatment of the greyhound industry.” The Division is the state agency charged with regulating pari-mutuel wagering activities in Florida pursuant to chapter 550. The Proposed Rule The full text of the Proposed Rule is as follows: 61D-6.0052 Procedures for Collecting Samples from Racing Greyhounds Designating Greyhounds for Sampling: Any greyhound the judges, division, track veterinarian, or authorized division representatives designate, shall be sent immediately prior to the race to the detention enclosure for examination by an authorized representative of the division for the taking of urine and/or other such samples as shall be directed for the monitoring and detection of both permissible and impermissible substances. When possible, a sample should be collected from two (2) greyhounds per race. When possible, greyhounds from more than one participating kennel should be sampled per performance. Additional greyhounds may also be sampled if designated by the judges, division, track veterinarian, or authorized division representatives. Collection of Samples: Urine and/or other samples shall be collected by an authorized representative of the division in an unused sample container supplied by the division, or its agent. Authorized representatives of the division shall wear unused gloves supplied by the division, or its agent, during sample collection until the sample container is sealed with its lid. Authorized representatives of the division shall use a sample card with a unique identifier to record the date of sample collection and the identification tattoo, microchip or name of the greyhound sampled or attempted to be sampled. The owner, trainer of record, or other authorized person is permitted to witness when the sample is collected from their greyhound. Failure of an owner, trainer of record or other authorized person to witness and/or sign the sample card shall not preclude the division from proceeding with sample analysis. Sealing and Labeling of Samples: As soon as possible after a sample is collected, the sample container shall be sealed with its lid. The sample container shall be labeled with the sample card’s unique identifier. Evidence tape shall be placed over both the sample container and lid on at least two sides. The authorized representative of the division that sealed the sample container shall initial the evidence tape on the sample container. Storing and Shipping of Samples: The samples shall be stored in a lockable freezer or container in a restricted area accessible by only authorized representatives of the division until the time of shipment. Upon the completion of packing the samples for shipment, the shipping container shall be locked. All appropriate forms for shipment shall be completed and included with the shipment to ensure correct delivery and identification of the contents. The samples shall be shipped to the laboratory under contract with the division for testing of the samples via the laboratory’s contracted common carrier. Authority of the Division: The division investigator or other authorized representative is authorized to confiscate any legend or proprietary drugs, medications, unlabeled medication, medication with altered labels, medicinal compounds (natural or synthetic) or other materials which are found on the grounds of greyhound race tracks and kennel compounds or in the possession of any person participating in or connected with greyhound racing, including veterinarians and trainers, and which are suspected of containing improper legend or proprietary drugs, medications, medicinal compounds (natural or synthetic) or other materials which are illegal or impermissible under these rules. Such legend or proprietary drugs, medications, unlabeled medication, medication with altered labels, medicinal compounds (natural or synthetic) or other materials shall be delivered to the laboratory under contract with the division for analysis. The division is authorized to confiscate any evidence that an illegal or impermissible legend or proprietary drug, medication, or medicinal compound (natural or synthetic) may have been administered to a racing animal. It is a violation of these rules for a licensee to threaten to interfere, actually interfere or prevent the taking of urine, blood, saliva or other samples authorized by Chapter 550, F.S. For such a violation, the division may impose any disciplinary penalties authorized by Chapter 550, F.S., or the rules promulgated thereunder. Rulemaking Authority 120.80(4)(a), 550.0251(3), 550.2415(12), (13) FS. Law Implemented 120.80(4)(a), 550.0251, 550.1155, 550.2415 FS. History–New . Issues for Disposition Section 120.56(2)(a) provides that “the agency has the burden to prove by a preponderance of the evidence that the proposed rule is not an invalid exercise of delegated legislative authority as to the objections raised.” The “objections raised” as identified in the Joint Pre- hearing Stipulation are those that remain for disposition in this proceeding, with issues not preserved having been waived. See Palm Beach Polo Holdings, Inc. v. Broward Marine, Inc., 174 So. 3d 1037 (Fla. 4th DCA 2015). As set forth in the recitation of “Petitioner’s Position,” the following issues are at issue: The proposed rule refers to urine and/or other samples in its text, yet only contains procedures for urine collection; The proposed rule fails to adequately detail necessary chain of custody procedures for sampling racing greyhounds; The proposed rule ignores basic scientific principles as to contamination; The proposed rule ignores basic scientific principles as to the timing of sampling; The proposed rule ignores basic scientific principles as to the temperature of a sample; The proposed rule fails to provide trainers and owners of an opportunity to witness their greyhounds' sampling; The proposed rule grants too much discretion to Respondent; Respondent failed to follow the applicable rulemaking procedures set forth in chapter 120; The proposed rule does not limit its application to urine; Stipulated Facts The following facts were stipulated by the parties: It is possible that a racing greyhound could become exposed to environmental substances during the time between the trainer relinquishing it at the track and the sampling. The reason that racing greyhounds are tattooed is for identification purposes. It is important to prevent contamination of a racing greyhound's sample. It is important to preserve the integrity of a racing greyhound's sample. The Proposed Rule does not require racing greyhound samples to be stored frozen. However, subsection (4)(a) of the Proposed Rule requires that the samples are stored in a lockable freezer or container. The Proposed Rule does not require that the racing greyhound samples be kept refrigerated. However, subsection (4)(a) of the Proposed Rule requires that samples be stored in a lockable freezer or container. The Proposed Rule does not contain any provisions for the drawing of blood, "other specimens," or other fluids from the racing greyhound. The Proposed Rule does not describe how all the individuals involved in the chain of custody of a racing greyhound sample record their involvement. The Proposed Rule contains a section entitled "Sealing and Labeling of Samples." The Proposed Rule does not describe the chain of custody for the taking of "other specimens" from the racing greyhound. The Proposed Rule does not describe the chain of custody procedures associated with materials confiscated under paragraph five of the Proposed Rule. Respondent published its Notice of Development of Rulemaking for Proposed Rule 61D-6.0052, F.A.C. (Notice of Development), on January 22, 2018. Respondent published its Notice of Proposed Rule 61D- 6.0052, F.A.C. (Notice of Proposed Rule), on January 29, 2018. Respondent's Notice of Proposed Rule 61D-6.0052, F.A.C., indicated it was approved by the agency head, Jonathan Zachem, on January 26, 2018, a mere [four] days after publication of Respondent's Notice of Development of Rulemaking for Proposed Rule 61D-6.0052, F.A.C. On February 6, 2018, a rule development workshop was requested for Proposed Rule 61D-6.0052, F.A.C. Respondent did not hold a rule development workshop for Proposed Rule 61D-6.0052, F.A.C. Respondent did not provide an explanation in writing as to why a workshop was unnecessary for Proposed Rule 61D-6.0052, F.A.C., other than Bryan A. Barber's letter of February 13, 2018. Facts Adduced at Hearing The purpose and effect of the Notice of Development was “to further clarify and describe the procedures performed by the Division in collecting samples from greyhounds and to create a rule specific to the greyhound sample collection. The Notice of Proposed Rule did not contain a statement of estimated regulatory costs imposed on small businesses. On February 6, 2018, Petitioner, through its representative, sent a letter to the Division requesting a rule development workshop. On February 13, 2018, the Division noted that the “rule development phase” ended with the publication of the Notice of Proposed Rule, and the request for a workshop was, therefore, untimely. There is no evidence that anyone provided the Division with information regarding a statement of estimated regulatory costs, or provided the Division with a proposal for a lower cost regulatory alternative. No one requested that a public hearing be held on the Proposed Rule. Racing greyhounds are delivered to the track by their owners or trainers prior to the commencement of their race card. Greyhounds racing during the matinee card are delivered at one time, and greyhounds racing during the evening card are delivered at a later time. The greyhounds are all weighed in about 60 to 90 minutes prior to the first race, regardless of the race in which a particular greyhound is scheduled to appear. After weigh-in, the greyhounds are handed over to the “lead-outs,” who are track employees, and taken to the ginny pit. Each greyhound is then placed in a numbered cage designating its race and position, and held there until its race is scheduled to commence. From the time an animal is given over to the lead-outs until its race is over, they are out of the control and sight of the owners and trainers. For greyhounds racing in the last race of a card, that period can be well in excess of four hours. Prior to each race, the race judge, Division, track veterinarian, or “authorized division representative” designates the greyhounds to be tested for that race. The process was not described, other than as described in the rule that “[w]hen possible, a sample should be collected from two (2) greyhounds per race. When possible, greyhounds from more than one participating kennel should be sampled per performance.” Mr. Ehrhardt testified that “ideally it’s blind and that you just pick one at random,” and that dogs from separate kennels be selected “to ensure that no one is singled out.” However, the Proposed Rule contains no criteria for the selection of an animal other than its being in the race. Even a requirement that the selection be random, and a mandatory selection of different kennels be made “when possible,” is sufficient to preclude an unfettered exercise of discretion in the selection of the greyhound. As it is, the selection of both dogs and kennels is completely within the discretion of the Division. Upon selection, the greyhounds are led to an open area to relieve themselves. At the Orange Park Kennel Club, the area is a restricted access grass and sand area surrounded by a chain link fence. There was no evidence as to other tracks, but there is little to suggest that the areas at other tracks are dissimilar. The process of collecting the sample involves watching the dog for a sign that it is ready to urinate, and then holding a plastic cup at the end of a stick, an “armed doohickey” as described by Mr. Ehrhardt, under the dog until it produces a sample. The sampler wears fresh gloves and uses an unused cup. When the sample is collected, the sampler places the lid on the container, labels the container, and places evidence tape “over both the sample container and lid on at least two sides.” After the sample cup is capped, labeled, and sealed, it is placed in a “lockable freezer or container in a restricted area.” Mr. Ehrhardt indicated that it was the Division’s intent that the freezer or container should be locked at all times that it is not being accessed to place samples in it, and that it should not be left unlocked. However, the plain language of the rule suggests otherwise. The lockable container is to be in a restricted area, but is only required to be locked “[u]pon completion of the packing of the samples for shipment.” Dr. Tobin testified that samples must be kept frozen or, at a minimum, refrigerated. Mr. Ehrhardt testified that once a sample is collected, it goes “straight to the freezer,” suggesting that freezing is the preferred method of storage. Failure to do so can result in degradation of the sample, bacterial growth, and, in certain cases, breakdown of substances into metabolites that would more closely mimic a prohibited substance in a dog’s urine. Petitioner argued that the timing of the sampling is problematic for another reason, other than the holding period for the greyhounds. Many owners and trainers have more than one dog racing during a card. The ginny pit and the finish line are at different ends of the track. Therefore, a trainer or owner may be collecting their dog(s) at the conclusion of a race at the same time the pre-race sample is being taken for the next race, making observation of the sampling difficult from a practical perspective. However, both Mr. Agganis and Mr. Chin acknowledged that there was nothing to directly prevent an owner or trainer from observing the sampling. Furthermore, there is nothing to prevent the owner or trainer, or even Petitioner’s members collectively, from having an employee or agent witness the sampling on their behalf, since the rule allows “[t]he owner, trainer of record, or other authorized person” to witness the sampling. In no fewer than 10 places in the Proposed Rule, actions are authorized to be taken by an “authorized representative” of the Division, or an “other authorized person.” The Proposed Rule does not identify who those representatives or persons might be, or how they may come to be authorized. Mr. Ehrhardt testified that the purpose of the less definitive description was “to figure out a way to make the rule flexible,” to meet the possibility that a “job title is going to change.” During Mr. Ehrhardt’s visit to the Orange Park greyhound racing facility, he was allowed into the restricted ginny pit area by “authorized personnel from the division,” who he described as “veterinarian assistants, chief inspector, investigators, people like that.” Petitioner objected to the lack of specificity because it provided no assurances that these individuals are competent, or held to any particular standard.
Findings Of Fact On or about November 9, 1983, the Respondents submitted applications to petitioner for the issuance of thoroughbred horse owner's licenses. On the application, Kourkoumelis represented that he owned 100 percent interest in Rozen, Inc., and further represented that Rozen, Inc., owned four thoroughbred race horses, including the horse "Hexgreave Star." The applications were processed by Petitioner, and Kourkoumelis was issued license Number 0171691, and Rozen, Inc., was issued license Number 0231210. The foal papers on Hexgreave Star, which are the official ownership papers of the horse, reflect that the horse was acquired by Rozen, Inc., from Cynthia Elliott on August 7, 1983. That date reflects the last transfer of the horse listed on the foal papers, up to and including the date of the hearing. Hexgreave Star was foaled in England and shipped to the United States sometime around November of 1982. A statement from the International Horse Services reveals that K. Richardson of Jubilee Farms was billed for the shipping expenses. However, there is no competent credible evidence of record to establish the identity of the true owner of Hexgreave Star at the time he was shipped from England. The horse was subsequently vaned from its port of entry in New York to Hialeah Race Track in the care of trainer Robert Elliott, the husband of Cynthia Elliott. On November 10, 1982, the Jockey Club issued foal papers to Robert Elliott, registering him as the first owner of the horse in the United States. Elliott was the owner of record of Hextreave Star until February 7, 1983, when ownership of the horse was transferred to his wife, Cynthia Elliott, for "$1.00 and other consideration." From that date forward, until August 7, 1983, Cynthia Elliott was the listed owner of Hexgreave Star. Financial support for Hexgreave Star was initially provided by a wire transfer into the Elliotts' joint bank account in the amount of $2,000 on or about November 22, 1982. This money was wired from an account in Liechtenstein maintained in the name of an organization known as "Fallig Finanz." There is no evidence of record in this cause to connect the operation of Fallig Finanz with either Kenneth Richardson, Kourkoumelis, or the Elliotts. A second $2,000 was wired into the Elliotts' account from Fallig Finanz at the end of the month of November, 1982. Part of this money was used to open a trainer's account for Hexgreave Star in Robert Elliott's name. Checks from that account were used to pay for the care of Hextreave Star in December, 1952, and January, 1953. During the months of November and December of 1982 and January of 1983, Hexgreave Star raced in Florida under Robert Elliott's name. The ownership of the horse was transferred to Cynthia Elliott on February 7, 1983, in anticipation of Robert Elliott's return to England. No money was exchanged between Mr. and Mrs. Elliott at the time of the transfer. After the transfer of the horse's ownership from Mr. Elliott to Mrs. Elliott, Kenneth Richardson and Cynthia Elliott opened a joint checking account at the Southeast Bank. Richardson initially deposited $2,000 into that account which was used for the upkeep and maintenance of Hexgreave Star. The account was generally used as a horseman's account from March until June, 1983. On April 1, 1983, an additional $2,000 was wired into the account from Liechtenstein. After February 7, 1983, Hexgreave Star raced under Cynthia Elliott's name in Florida; at Monmouth Park, New Jersey; Penn National Race Track in Pennsylvania; and Belmont Park in New York. The racing accounts of Hexgreave Star reflect that the horse earned in excess of $47,000 in purses during that time. Approximately $30,000 of that money was paid to Kenneth Richardson by Mrs. Elliott in two separate payments on July 28 and August 4, 1983. Cynthia Elliott met Peter Kourkoumelis through her husband, Robert Elliott, on January 31, 1982. Mrs. Elliott saw Kourkoumelis with Kenneth Richardson on two occasions at Gulfstream Park in 1983. Throughout the time that Cynthia Elliott was racing Hexgreave Star under her own name, she was frequently in contact with Kenneth Richardson. During the summer of 1983, beginning with the Hialeah meeting, questions regarding the identity and ownership of Hexgreave Star were raised with Cynthia Elliott by the Thoroughbred Racing Protective Bureau (TRPB) and the Jockey Club. Beginning in June of 1983, Mrs. Elliott notified Richardson of these inquiries, and continued to keep Richardson apprised as the TRPB continued its investigation. In the last week of July, 1983, Cynthia Elliott met with Kenneth Richardson, his son Andrew, and Peter Kourkoumelis at the Floral Park Motel in Belmont, New York, to discuss the fortunes of Hexgreave Star. In a subsequent meeting, Mrs. Elliott presented Kenneth Richardson with a list of expenses and deductions, and the remaining funds from the horse's winnings. Rozen, Inc., was incorporated in Florida on August 1983. Kourkoumelis was listed as the corporation's sole director and officer. On August 3, 1983, Cynthia Elliott signed a bill of sale purporting to transfer her interest in Hexgreave Star to Rozen, Inc. Also on August 3, 1983, an agreement was entered into between Cynthia Elliott and Rozen, Inc., for the care and training of Hexgreave Star. Present at the signing of the agreement were Cynthia Elliott; Peter Kourkoumelis, who signed the agreement as president of Rozen, Inc.; and Kenneth Richardson and Andrew Richardson. By the terms of the agreement, Cynthia Elliott was authorized to train Hexgreave Star, but Rozen, Inc., was to make major managerial decisions concerning the horse. The agreement provided that the horse ". . . is the sole property of Rozen, Inc.", and that all prize money won by the horse was payable to Rozen, Inc., less 10 percent in fees, $30 per day training fees, and blacksmith and veterinarian bills. After the execution of the August 3, 1983, agreement, Cynthia Elliott continued to pay for the care and upkeep of Hexgreave Star from funds left in the track account. On August 9, 1983, Mrs. Elliott purchased an insurance policy on Hexgreave Star in the amount of $50,000. The horse was insured in the name of Rozen, Inc., and the premium of $3,612.50 was paid by Mrs. Elliott from funds left in the track account. Through the middle of September, 1983, Mrs. Elliott provided for the care and maintenance of Hexgreave Star through funds that were left in the track account. She itemized her expenses and showed them to Richardson on August 19, 1983, in England. By separate letters dated September 22, 1983, Cynthia Elliott notified Kenneth Richardson and Peter Kourkoumelis of her decision to resign her position with Rozen, Inc. There is no evidence of record to establish what, if any, transaction occurred concerning Hexgreave Star between September 22, 1983, and November 9, 1983, the date on which Kourkoumelis and Rozen, Inc., allegedly falsified their license applications. There is no direct evidence, or, indeed, any credible evidence at all, to establish that Kourkoumelis was aware of the manner in which Hexgreave Star had been handled between Kenneth Richardson, and Robert and Cynthia Elliot. Further, there is no competent credible evidence of record to establish either that anyone other than Peter Kourkoumelis and Rozen, Inc., owned Hexgreave Star on November 9, 1983.
The Issue The two issues in this case are whether Respondent, as the trainer of record for two greyhounds; M's Shamrock, that first place finisher in the fourth race on November 7, 2001, and greyhound Lapislazuli, first place finisher in the fourteenth race on November 7, 2001, is legally responsible for the prohibited substance found in each greyhound's urine sample taken immediately after the races, and if so, what penalty should be imposed.
Findings Of Fact At all times relevant and material to this proceeding, Petitioner, Department of Business and Professional Regulation, Division of Pari-mutuel Wagering (Division), created by Subsection 20.165(2)(f), Florida Statutes, is the agency responsible for regulation of the pari-mutuel wagering industry pursuant to Section 550.0251, Florida Statutes. At all times relevant and material to this proceeding, Respondent, Curtiss D. Hughes, was the holder of a pari-mutuel license issued by the Division. Sanford-Orlando Kennel Club is a permit holder authorized to conduct greyhound racing and pari-mutuel wagering in the State of Florida. On November 7, 2001, Respondent was the trainer for a racing greyhound named M's Shamrock that finished first in the fourth race of the evening performance at Sanford-Orlando Kennel Club on that date. Immediately after each race the greyhounds who finish in the win, place and show positions are taken to the "cooling off" area where urine samples are taken by the Kennel's veterinarian assistant and urine sample collector. On November 7, 2001, Brandy Glaspey, veterinarian assistant, collected the urine sample of greyhound, M's Shamrock, and assigned, for identification purposes, number 738627 to M's Shamrock's urine sample. Urine sample 738627 was shipped to the University of Florida Racing Laboratory, Gainesville, Florida, where under the supervision of Dr. Ian R. Tebbett, Ph.D., professor and director of the racing laboratory at the University of Florida and qualified as an expert in forensic toxicology, it tested positive for illegal substance. On December 21, 2001, Respondent was the trainer for a racing greyhound named "Lapislazuli," which finished first in the fourteenth race of the matinee performance at Sanford- Orlando Kennel Club. Immediately after the race a urine sample was collected from Lapislazuli by Brandy Glaspey, veterinarian assistant, and assigned sample number 788210 for identification purposes. Urine sample numbered 788210 was shipped to the University of Florida Racing Laboratory, tested, and found to contain Benzoylecgonine, a metabolite of Cocaine. Cocaine is a Class 1 drug according to the Association of Racing Commissioners International classification system. Respondent testified that he did not administer the drug cocaine to greyhound, Lapislazuli, and he had never been cited for any prior drug violation while holding a Florida occupational license. Respondent's defense to the administrative complaint (Election of Right) alleged a possible breach of the "chain of custody" (from the end of the race, to bringing dogs to the ginny pit, to sample collection, to sample labeling, to sample examination and sample results) and a breach and/or lack of kennel security. There was no material evidence presented of a specific breach of security.
