The Issue The issue in this case is whether Respondent, as the trainer of record for a greyhound, Tony's Maradona, that finished first place in the thirteenth race on November 6, 2001, is legally responsible for the prohibited substance found in the greyhound's urine sample taken immediately after the race, 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, Sardar Ahmed, was the holder of a pari-mutuel license issued by the Division. The Kennel Club is a permit holder authorized to conduct greyhound racing and pari-mutuel wagering in the State of Florida. On November 6, 2001, Respondent was the trainer of record for a greyhound, Tony's Maradona, having registered with the Kennel Club Racing Secretary and having been listed in the November 6, 2001, racing program. On November 6, 2001, greyhound Tony's Maradona finished as first (place) winner in the thirteenth race of the evening at the Kennel Club. 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 Club's veterinarian assistant and urine sample collector. On November 6, 2001, Brandy Glaspey, veterinarian assistant, collected the urine sample of greyhound, Tony's Maradona, and assigned, for identification purposes, number 738612 to Tony's Maradona's urine sample. Urine sample number 738612 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, cocaine. Respondent testified that he did not administer the drug cocaine to the greyhound, Tony's Maradona; he had never been cited for any prior drug violation while holding a Florida occupational license; and he was not the trainer of Tony's Maradona, but was the owner of the greyhound. While this testimony was not rebutted or challenged by Petitioner and it is considered by the undersigned as true, its evidentiary value regarding the allegations in the complaint is nil. Respondent's defense to the Administrative Complaint (Election of Rights) alleging a possible breach of the "chain of custody" (from the end of the race, to bringing the dogs to the ginny pit, for sample collection, for sample labeling, sample examination and sample results) due to a lack of security was not supported by material evidence of record.
The Issue The issue in this case is whether the Respondent licensee should be disciplined for allegedly violating F.A.C. Rule 61D-1.002(22).
Findings Of Fact The Respondent, David A. Held, has been in the business of training racing greyhounds in Florida, with the appropriate State of Florida licensure, for approximately 15 years. On or about August 25, 1993, he applied for renewal of his license, and on September 9, 1993, his occupational license as an unrestricted professional greyhound trainer was renewed for another year. By all accounts, during the entirety of the Respondent's career as a professional greyhound trainer, up until the incidents involved in this case, the Respondent did a creditable job both training and caring for the animals in his care. In early September, 1993, a series of stressful events in the Respondent's life built to a level of stress with which the Respondent no longer could cope effectively. First, for some time, the Respondent had been divorced and had primary responsibility for the care of his young son (with assistance from his parents.) He also was caring for and training a number of racing greyhounds at a kennel in the Tampa compound in Plant City, Florida. He leased the kennel from Charles Marriott, who paid him $100 a month to "finish" each greyhound Marriott placed in the Respondent's care. Marriott also paid the cost of schooling his greyhounds at the track in Sarasota every Monday and Thursday morning and paid the cost of any veterinarian services needed for his greyhounds. He also received $700 in approximately August, 1993, for "finishing" seven greyhounds owned by Lamar Porter and being trained by Dorothy Weekley during that month. But, in addition to Marriott's 16 greyhounds and Porter's seven, the Respondent also had approximately 21 others in the kennel in early September, 1993. Twenty were owned by an individual named "Jim," who stopped paying the Respondent. Without any income from "Jim," the Respondent began having serious financial difficulties covering the expenses of caring for and maintaining all of the animals in his charge, much less also providing living expenses for him and his son. For reasons not fully explained at the hearing, the Respondent always bought the meat in Clearwater. Due to his financial difficulties, the Respondent lost his credit at the place where he was purchasing frozen meat for the greyhounds in his kennel. As a result, he had to pay cash and buy the meat daily. The additional time spent buying meat on a daily basis put additional stress on the Respondent. To make matters worse, the roof of his kennel collapsed in early September, 1993. He had to move all of the greyhounds in his charge to a temporary kennel. Anticipating flea and tick and other problems from using the temporary kennel, he mowed the grass in the "turn-out" area of the temporary kennel and even tilled the soil. Despite those precautions, he began having worse than normal flea and tick problems. In addition, many of his greyhounds began to develop a skin disease characterized by multiple lesions. (The Respondent referred to it as "the Alabama rot.") Meanwhile, while trying to attend to all of the other responsibilities he had, the Respondent also had to re-roof and re-paint his kennel. While this was going on, his equipment was scattered in various places in the two kennel locations, and there was construction debris on the grounds as well. His operation appeared to be and was in fact in a state of chaos. While trying to cope with all of the unusual problems he was having, the Respondent still managed to continue to care for the greyhounds in his care. He cared for and fed the animals, turned them out to urinate and excrete feces and exercise several times a day, "finished" them (i.e., prepared them for race training at a track), and met Marriott at the track in Sarasota every Monday and Thursday to "school" his greyhounds. On September 8, 1993, the Respondent had to be at the dog track in St. Petersburg in the late afternoon. He also had to "turn his dogs out" and buy meat for them. He decided that, instead of driving all the way back to Plant City to "turn out" at 5:30 p.m., the normal time for the next "turn-out," he would first go directly to Clearwater to buy the meat. He did not get back to his kennel until later in the evening. Meanwhile, the owner of one of the dogs at his kennel, a Lamar Porter, was driving by the Tampa compound in Plant City and decided to check on his dogs. He was told at the security gate that the Respondent had not been there to "turn out." Porter tried to reach the Respondent by telephone and got his mother at his parents' home. Porter told her that the Respondent had not "turned out" and could not be located and made the statement that someone had better "turn out." Based on Porter's statement, the Respondent's mother decided that she and her husband should take it upon themselves to try to "turn out" for her son. They drove to the compound, went to the Respondent's kennel, and began to "turn out." During the "turning out," the Respondent's parents "turned out" dogs that should not have been "turned out" together and "turned out" too many dogs at once. Some of the dogs began fighting, and the Respondent's parents were unable to stop the fighting. The situation quickly was out of control, and the Respondent's parents sent for help. By the time help arrived, several of the dogs were injured, some seriously; one was killed. The next morning, Thursday, September 9, 1993, the Respondent met Marriott at the track in Sarasota, as scheduled. Marriott's greyhounds looked good and performed well in the schooling. Up to then, Marriott was "very satisfied" with the Respondent. Some of his best greyhounds at the St. Petersburg track, where he raced his dogs, were "finished" by the Respondent. On September 9, 10 or 11, 1993, the Respondent also delivered seven of Porter's dogs to Dorothy Weekley. Weekley also is a racing greyhound trainer. She had agreed with Porter to train and race his greyhounds in return for a 65 percent interest in them. Through Porter, she paid the Respondent $700 to "finish" the seven greyhounds for her during the preceding month. When the Respondent delivered the greyhounds to Weekley at an "unofficial schooling," they were in poor condition. Weekley testified that they appeared to be underfed and poorly cared for. She testified that they were underweight and out-of-condition and that they were infested with ticks and fleas. While it is not inconceivable, in light of the problems the Respondent was having with the "turn-out" pen at his temporary kennel, that the Porter greyhounds had worse than usual ticks and fleas, there does not appear to be any reason why they would have more ticks and fleas than Marriott's greyhounds, which looked fine to him, or why the skin disease afflicting the dogs would have afflicted Porter's greyhounds more than Marriott's. There also does not appear to be any reason why Marriott's greyhounds would have been better fed or exercised than Porter's. However, it is quite possible that Porter's greyhounds were more involved in and more affected by the dog fight the previous evening than Marriott's. In any event, it is curious that Weekley never complained to the Respondent about the condition of the dogs, and the evidence did not clearly explain the reasons for the poor condition of the Porter greyhounds when the Respondent delivered them to Weekley. On September 10, 1993, the Respondent took one of his dogs with the worst skin lesions from "the Alabama rot" to the local veterinarian who specialized in the care of racing greyhounds for treatment and for advice on how to treat the other dogs that also had developed the skin problem. The Respondent planned to worm his greyhounds on Sunday, September 12, 1993. The Respondent uses worm pills that require the dogs to have an empty stomach so they are not fed the day before. Although the veterinarian who testified at the hearing explained that he prefers another method that does not require the dogs to skip a feeding, there was no evidence that the method used by the Respondent was inappropriate. (It is how the Respondent always has wormed greyhounds in his charge.) The Respondent did not feed the dogs on the evening of Saturday, September 11, and planned to feed them on the evening of Sunday, September 12, 1993. He wormed the dogs, as planned, earlier on Sunday, September 12, 1993, but when he went to feed them later that evening, he discovered that the meat was spoiled. He thought at the time that he had taken the meat out too early to thaw although it is possible that the meat was spoiled before it was frozen for sale. At that point, on Sunday evening, September 12, 1993, the Respondent was unable to cope with any more adversity. (In view of his poor mental and emotional condition, the Respondent probably was not caring for the dogs as well as he normally would have throughout the weekend.) Nor was he able or willing to seek help in meeting his responsibilities. In extreme emotional distress, he simply walked away from the kennel and his responsibilities. By the next morning, Monday, September 13, 1993, the Respondent was considering suicide. He telephoned his parents to tell them. He asked them to telephone Marriott to tell him what was happening so that he could arrange to take care of the dogs. A short time later, the Respondent's father found the Respondent collapsed and unconscious on the seat of his truck. The Respondent's father turned off the engine, and the Respondent survived. His parents got him help at a local crisis intervention center. Before Marriott was able to reach the Respondent by telephone to find out why the Respondent had missed the scheduled schooling in Sarasota that morning (the Respondent's cellular telephone Marriott was calling had been stolen), he got a telephone call from the Respondent's mother. Marriott immediately telephoned Lamar Porter and asked him to look in on and take care of the dogs in the Respondent's kennel until he could get there. When Porter arrived along with some neighboring kennel operators, the Respondent's kennel still was in deplorable condition (primarily as a result of the unfinished refurbishing and the requirement to contemporaneously use the temporary kennel), and his dogs already were in terrible shape. They had not eaten since the evening of Friday, September 10, 1993, and had not been watered or turned out since some time on Sunday. It does not take more than a few days without food and water for greyhounds to develop serious health problems. In addition, the worming process used by the Respondent tends to dehydrate the dogs. By the time the dogs were "rescued" on Monday, September 13, 1993, they were weak, dehydrated and practically starved. One was unable to stand and had its tail chewed off (probably by the dog in the adjacent kennel) and was carried to a veterinarian for treatment. When the vet telephoned the dog's owner to apprise her of the extent of the dog's injuries, the owner decided to authorize the vet to euthanize the animal. After being admitted to the crisis center, the Respondent was hospitalized for approximately a week. Marriott evicted him from the kennel, and other arrangements were made for the care of the greyhounds found there. The Respondent had no further involvement with the animals. During his hospitalization, the Respondent was diagnosed as having manic-depression and was given medication. On being discharged from the hospital, the Respondent's attending mental health professional advised that he continue a course of medication and treatment after his discharge. The Respondent has not followed that advice.
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 revoking the license of the Respondent, David A. Held, for one year and declaring him ineligible for relicensure for a period of one year, with relicensure (1) conditioned upon certification by a Florida licensed mental health practitioner that he either has completed necessary mental health treatment, or that he remains on an appropriate course of treatment, and that he is mentally able to carry out the responsibilities of licensure, and (2) on probation for one year with appropriate conditions to be determined by the Division. RECOMMENDED this 3rd day of June, 1994, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 3rd day of June, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-1202 To comply with the requirements of Section 120.59(2), Fla. Stat. (1991), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. 1.-9. Essentially accepted and incorporated to the extent not subordinate or unnecessary or argument. 10. Conclusion of total neglect for the entire time period, rejected as subordinate to facts contrary to those found. Otherwise, essentially accepted and incorporated to the extent not subordinate or unnecessary or argument. 11.-13. Essentially accepted and incorporated to the extent not subordinate or unnecessary or argument. 14. Rejected to the extent contrary to facts found. (The evidence did not clearly explain the reasons for the poor condition of the Porter greyhounds when the Respondent delivered them to Weekley. It is curious that Weekley never complained to the Respondent about the condition of the dogs.) 15.-16. Essentially accepted and incorporated to the extent not subordinate or unnecessary or argument. Accepted but subordinate and unnecessary. (Several other conditions precedent to the resulting death of a dog also coincided.) Rejected as not proven that he "never" sought assistance; however, as found, except for seeking veterinarian assistance for the skin disease, the Respondent did not seek the assistance needed to cope with the situations described in the findings of fact. Respondent's Proposed Findings of Fact. Accepted but largely subordinate and unnecessary. In part, rejected as contrary to facts found (that Marriott had 16 dogs in the Respondent's kennel at the time) and as subordinate to facts contrary to those found (that all of the dogs in the kennel indeed "had trouble" on September 13, 1993.) Otherwise, accepted and incorporated to the extent not subordinate or unnecessary or argument. Second sentence, rejected as not supported by any evidence and as subordinate to facts contrary to those found. Fourth sentence, not clear from the evidence whether Porter was there up to the time the dogs became agitated; besides, irrelevant if he was. Fifth through eight sentences, in part rejected as not supported by any evidence (whether the dogs were muzzled) or as not clear from the evidence (whether female dogs were involved; besides, also irrelevant since the Respondent was not there and was not involved. Ninth sentence, not clear whether Porter was there when the Respondent drove up but irrelevant in any event. Tenth sentence through end of paragraph, rejected as contrary to the greater weight of the evidence that Porter "interfered" rather than simply expressed normal concern for the welfare of his dogs and the others in the kennel; otherwise, rejected as being subordinate and argument. COPIES FURNISHED: John B. Fretwell, Esquire Department of Business & Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007 David A. Held 6202 South Harold Avenue Tampa, Florida 33616 Jack McRay, Esquire Acting General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
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 is whether Respondent, Walt Disney Parks and Resorts US, Inc. (Disney), a place of public accommodation, violated section 760.08, Florida Statutes, by denying Petitioner, a handicapped individual, access to its property because his service animal was unleashed.
Findings Of Fact Background Disney is a public accommodation whose principal business activity consists of the ownership, operation, and management of theme entertainment parks, resorts, and related facilities located in the Orlando area. The theme parks include Magic Kingdom Park, Epcot, Animal Kingdom Park, and Hollywood Studios. Petitioner is a 50-year-old male who resides in Winter Garden. In 2004, while living in Illinois, Petitioner was severely injured when a large truck rear-ended his motor vehicle. In 2007, he was declared permanently disabled due to leg and spinal injuries suffered in the accident. As a result of these injuries, he walks only short distances with the aid of a walking device or cane. For longer distances, he normally uses a motorized scooter. Petitioner moved to Florida around 2012 to escape the cold weather in Illinois. He testified that he and his family have always enjoyed visiting Disney theme parks and other non- Disney tourist attractions in the area, and this was one of the primary reasons he moved to the Orlando area. Until this dispute arose, he was a Disney Annual Passholder, which allowed him multiple admissions to the theme parks at a discounted rate. Although Petitioner says he used the pass to access the theme parks on numerous occasions, other than those at issue in this case, there is no credible evidence that he was allowed to enter the parks with an unleashed service animal on any occasion. The Service Animal In early 2013, Petitioner decided to acquire a service animal to assist him while ambulating inside and outside his home. He purchased Lily, an eight-week-old, female Dogo Argentino, which is a large, white muscular dog developed in Argentina primarily for the purpose of big-game hunting. A strong, powerful dog with a large bite, it is one of the deadliest breeds in the world and is banned in some European countries. Lily resembles a pit bull in appearance and weighs almost 100 pounds. In contrast, a mature male Dogo Argentino weighs around 150 pounds, but does not look like a pit bull. Petitioner testified that he wanted his service animal to look like a pit bull, so he chose a female even though a male is easier to train. Although purchased in early 2013, Lily did not begin service training until April 2014, or one month before Petitioner's first claim of discrimination at the Epcot theme park. Petitioner selected Southland Dog Training (Southland) as Lily's trainer. Lily was the first Dogo Argentino Southland had trained to be a service animal. Not surprisingly, Southland has an indemnity provision in its training agreements to protect itself from liability in the event a dog that has gone through the training program ends up harming someone. And even though Lily was given training on interacting safely with children in a crowded setting, and never exhibited aggression during its training sessions, Southland does not guarantee the dog will not harm someone. In fact, Southland's owner admitted that "[a]ny and every dog has the propensity to be aggressive, it's in their genes[,]" and "[a]ny breed of dog can be aggressive." A dog's propensity to be aggressive was also confirmed by Disney's canine expert, Bob Gailey, a professional police dog and civilian dog trainer who has trained between 20,000 and 30,000 dogs over a 65-year career, including Dogo Argentinos, and conducts seminars on dog training and safety issues. He explained that no amount of training can guarantee that a dog will not bite someone with or without provocation. For obvious safety reasons, he emphasized that service animals must be kept on a leash while in crowded public areas, such as a Disney theme park. Mr. Gailey noted that "freakish incidents" can and do occur, and that even trained dogs, such as Lily, need to be on a leash to protect the safety of others. In fact, Mr. Gailey pointed out that he has been bitten around 100 times by trained dogs, without any provocation, including some whose owners say they have never bitten anyone. He added that due to a Dogo's large bite, it could "definitely" kill a child. Thus, Disney has a real and legitimate safety concern, and not one based on mere speculation, that allowing unleashed service animals on its property poses a potential safety threat to other guests, especially children. To address this concern, Disney has adopted a policy for service animals, described below. Lily has been trained to perform the following tasks: open doors; push handicap buttons; retrieve items; and pull Petitioner out of a body of water. However, Petitioner can perform some of these tasks on his own, such as pushing handicap buttons and picking up items. Petitioner contends that forcing him to keep Lily on a leash or harness at all times could result in the leash becoming tangled in the scooter's wheels. However, Mr. Gailey established that besides being trained to perform all functions on a leash, service animals can be taught how to avoid getting their leashes tangled up with the wheels. Being leashed or tethered will not interfere with Lily performing her assigned tasks. Petitioner's Limitations Petitioner has had multiple surgeries related to his accident, the last one on his left shoulder on February 2, 2010. At a follow-up appointment, Petitioner's surgeon noted that he "has full range of motion, minimal pain at the end ranges of forward flexion [and] 4+/5 strength in all planes " Pet'r Ex. 21, at 00484. In plainer terms, this means that he has nearly normal strength and full range of motion in his left shoulder, with minimal pain. Petitioner does not dispute the doctor's findings. Although his right shoulder and arm are not at normal strength for an adult male, there are no serious medical issues with either, and Petitioner acknowledged that there are no physical limitations in using them. In fact, Petitioner uses his right arm to drive and steer his motorized scooter. When walking short distances, Petitioner uses a cane with his right arm, sometimes with Lily, other times without her. When Lily accompanies him, she provides balance and stability on his left side. When riding in his motorized scooter accompanied by Lily, Petitioner normally steers with one hand and grips a leash or harness attached to Lily with his other hand. The dog usually walks in front, or to the side, of the scooter. However, when the dog is in the follow position off-leash, Petitioner cannot see Lily and thus is unable to control her, even if she is wearing an electronic collar. As the Southland trainer explained, if the owner cannot see the dog, then they do not know what the dog is doing. Petitioner admits that he cannot maintain control of his service animal at all times without holding a leash or harness. In both his Petition for Relief and testimony at hearing, Petitioner acknowledged that except for "an extended period of time," his disability does not prevent him from being able to hold and use a leash or harness on Lily. This was confirmed by his wife. Despite the injury to his left shoulder, he has held and used a leash or harness with that arm. The greater weight of evidence supports a finding that Petitioner is able to hold a leash with his hand, at least for short or moderate periods of time, or that a leash can be easily tethered to his wrist or a mobility device on the scooter. A contention that the leash may become entangled in the scooter's wheels has been rejected for the reasons stated in Finding of Fact 8. Disney's Policy on Service Animals Disney theme parks are typically crowded and noisy. On any given day, tens of thousands of guests, including large numbers of young children, frequent the parks. Service animals are routinely granted access to the theme parks. However, Disney park rules provide that "[s]ervice animals must be under the control of the owner at all times and should remain on a leash or in a harness." Resp. Ex. 1, p. 2. The requirement is not just that the dog wear a harness, but rather that the harness is being used. For the reasons expressed above, there are legitimate safety concerns that underpin this rule. State and federal law require that a visitor seeking entrance to a public accommodation with a service animal must have the animal on a leash, harness, or other tether, unless either the handler is unable because of a disability to use a harness, leash, or other tether, or the use of one of those restraints would interfere with the animal's safe, effective performance of work or tasks, in which case the service animal must be otherwise under the handler's control, such as voice control, signals, or other effective means. See § 413.08(3)(a), Fla. Stat.; 28 C.F.R. § 36.302(c)(4). Disney contends that its policy conforms to both state and federal law. The Charges The Complaint, filed on February 3, 2015, alleges that on May 4, 2014, Petitioner was denied admission to Epcot because his dog was unleashed; on August 27, 2014, he was asked to leave Downtown Disney because Lily was unleashed; on October 9, 2014, he was denied admission to Magic Kingdom because Lily was unleashed; and on December 5, 2014, he was denied admission to Animal Kingdom due to Lily being unleashed. However, no evidence was presented concerning the visit to Magic Kingdom in October 2014, and that charge has been disregarded. The testimony concerning Petitioner's other three visits to the theme parks is sharply in dispute. The undersigned has accepted as being the most credible the following version of events. Epcot Visit in May 2014 On May 4, 2014, Petitioner visited Epcot with his wife, daughter, and service animal. As Petitioner entered the International Gateway in his motorized scooter, Lily was unleashed and sitting near the bag check area in front of the park, which was around ten or 15 feet from Petitioner. A main entrance cast member is a Disney employee trained on park rules who observes guests entering the park. A cast member noticed that Lily was off-leash, which was against park rules, and stopped Petitioner, informing him that he must have the dog on a leash before entering the park. Petitioner refused to do so. Petitioner's contention that the cast member had a belligerent and hostile attitude during the encounter is not credited. Even assuming arguendo this is true, treating a guest in a rude and hostile manner does not equate to discrimination by the public accommodation. See, e.g., Lizardo v. Denny's, Inc., 270 F. 3d 94, 102 (2d Cir. 2001). While Petitioner spoke with a second cast member, Lily was unleashed and untethered, approximately ten to 15 feet away from him near a half-wall by the entrance to the park. During the 30-minute encounter, there was little, if any, attention being paid to Lily, who had no physical tether to prevent her from wandering off. A cast member then contacted Jim Beeson, Epcot's Operations Manager, who arrived to speak with Petitioner and apologized for the delay in having to walk from another area of the park. Petitioner informed Mr. Beeson that he was unable to hold a leash and needed to have his service dog untethered. During his conversation with Petitioner, Mr. Beeson observed Petitioner talking with his hands and did not see any indication that Petitioner was unable to hold a leash. He also observed that there was no leash on Lily, unlike any service dog he had encountered while working at Disney. Mr. Beeson further observed that Lily was not always by Petitioner's side, she tried to get up and wander off several times during the conversation, and she did not respond to voice commands. In fact, Mr. Beeson noticed that Petitioner's wife continually had to push the dog back so that it would not leave. Based on his 33 years of experience at Disney, which includes observing numerous guests with service animals, Mr. Beeson concluded that Petitioner could not maintain control over his dog with voice and hand signals. At no time during the interaction did Lily perform any tasks for Petitioner. In Mr. Beeson's opinion, he questioned whether Lily was even qualified as a service animal. After speaking with Mr. Beeson for approximately 30 minutes, Petitioner decided to leave the park. Disney did not deny Petitioner access to the park on account of his disability, or simply because of Lily's breed. Nor was he treated differently than any other guest with a service animal. Rather, Disney's action was motivated solely by concerns for the safety of the other guests. Had he agreed to place a leash on Lily, Petitioner would have been admitted to the park. Downtown Disney Visit in August 2014 On August 27, 2014, a guest notified a Downtown Disney security cast member of concerns about a large, unleashed dog on the property, which turned out to be Lily. Security control radioed the duty manager, Dan McManus, who arrived on the scene less than ten minutes later. When he arrived, Mr. McManus saw Petitioner, accompanied by his wife, speaking with the security cast member. Petitioner told Mr. McManus that he was unable to hold a leash due to his disability. According to Mr. McManus, he did not see any indication that Petitioner was unable to hold a leash, as he observed Petitioner waving a large binder and flipping through pages of what he claimed were American with Disabilities Act (ADA) guidelines. Mr. McManus is familiar with ADA guidelines as he frequently encounters guests with service animals on the property. He noted that during his seven years at Downtown Disney, he has observed service animals of all different shapes and sizes on the property. However, Mr. McManus explained that these service animals are always on a leash or tether, and that if a guest is in a wheelchair or electric scooter, the guest may hold a leash, the leash may be tethered or attached to the scooter or wheelchair, or another member of the party may hold the leash for the guest. Petitioner refused to comply with any of those options. Mr. McManus again informed Petitioner that Disney's policy required that service animals be on a leash. He noticed that Lily was wearing some sort of a shock collar, but did not recall the dog wearing a harness. At no time during the interaction did Lily perform any tasks for Petitioner, who had informed Mr. McManus that Lily helps open doors for him. Before Mr. McManus arrived, Petitioner telephoned the Orange County Sheriff's Office and requested that a deputy sheriff be sent to the theme park, presumably to observe the encounter. Petitioner's conversation with Mr. McManus ended when two deputy sheriffs arrived on the property. At that point, Mr. McManus went back to his office to check with the Services for Guests with Disabilities Department to inquire whether an electronic collar would satisfy the leash requirement for service dogs. He was told to adhere to the Disney policy and require that the dog be on a leash. Before Mr. McManus returned, Petitioner departed the premises. Disney did not deny Petitioner access to the park on account of his disability or because of Lily's breed, and he was not treated differently than any other guest with a service animal. Had Petitioner used a leash or harness for Lily, he would not have been approached or stopped during his visit to Downtown Disney. Animal Kingdom Visit in December 2014 On December 5, 2014, Petitioner visited Animal Kingdom with his wife and mother. He was stopped at the front entrance because Lily was not leashed or tethered. Larry Hetrick, a guest service manager at the park, was called over to speak to Petitioner. When Mr. Hetrick arrived, Petitioner was speaking with two security employees. No other Disney personnel were present. Petitioner's perceived fear that Disney personnel were "waiting" for him when he approached the park is unfounded. Petitioner explained his interpretation of federal laws and civil cases to Mr. Hetrick but never said why Lily could not be on a leash. Contrary to Petitioner's testimony, Mr. Hetrick did not tell him that Disney's policies superseded federal law, and he patiently listened to Petitioner's summary of the law while examining his paperwork. At no time during the encounter did Lily perform any service animal tasks. Ten minutes later, the duty manager for Animal Kingdom arrived and the three spoke for another ten minutes or so. When Petitioner told them that he intended to file a legal action against Disney, the conversation ended. He was not told that he "had to leave the premises." Disney did not deny Petitioner access to the park on account of his disability or because of Lily's breed. Moreover, he was not treated differently than any other guest with a service animal. Had Petitioner complied with Disney's policy, he would have been able to access the park.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing, with prejudice, the Petition for Relief. DONE AND ENTERED this 26th day of April, 2016, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER 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 26th day of April, 2016. COPIES FURNISHED: Tammy Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Suite 110 Tallahassee, Florida 32399-7020 (eServed) Cheyanne M. Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Suite 110 Tallahassee, Florida 32399-7020 (eServed) Geoffrey E. Parmer, Esquire Dogali Law Group, P.A. Suite 1100 101 East Kennedy Boulevard Tampa, Florida 33602-5146 (eServed) Jeremy M. White, Esquire Kaye Scholer, LLP The McPherson Building 901 15th Street, Northwest Washington, D.C. 20005-2300 (eServed)
The Issue The central issue in this case is whether the Respondent is guilty of the violations alleged in the order to cease and desist dated June 6, 1989, as amended by the allegations set forth in the motion filed December 29, 1989; and, if so, what penalty should be imposed.
Findings Of Fact Based upon the prehearing stipulation, the testimony of the witnesses and the documentary evidence received at the hearing, the following findings of fact are made: At all times material to the allegations in this case, Respondent was not registered to sell securities under the provisions of Section 517.12, Florida Statutes, nor did Respondent register securities under those provisions. Respondent was incorporated and doing business within the State of Florida during the period 1984 through 1986. At that time, Neil Pincus served as vice president of the company. On July 27, 1984, an advertisement ran in The Tampa Tribune which contained the following language: OWN A RACING GREYHOUND Visit The Farm Hanover Farms is offering a total purchase plan. You get title to your greyhound, boarding, training, racing services provided. Low investments with tax advantages. If you're ready to step into the winner's circle call for appointment and transportation from the Quality Inn, Longwood (Or1and) to the nearby farm. 305-862-4000 The same or similar advertisements ran in other news periodicals for a time, including (on July 15, 1985) the Tallahassee Democrat and a number of out-of-state newspapers. In response to one such advertisement, Christopher Desnoyers, a resident of Massachusetts, requested additional information regarding Respondent's investment program. Mr. Desnoyers received materials from Respondent which outlined the program. Such materials provided, in pertinent part: The Greyhound Ownership Program is unique in the Greyhound Industry. Here's how it works. Our greyhound experts and trainers select from the available supply of young, unraced greyhounds, just those few outstanding greyhounds which qualify under our strict standards for breeding, conformation and racing ability. We then offer the greyhound for purchase under our Greyhound Ownership Program. A staff of veterinarians, trainers, handlers, analysts and managers will ensure that each greyhound purchased receives the finest state-of-the art care and training. * * * After completing the qualifying training, at your direction, Hanover Farms will lease your greyhound for racing or you may select a kennel of your choice. You will receive a percentage of all purses won by your greyhound. In addition, you will receive the owners portion of all stud, breeding and syndication fees. In addition to the foregoing, Respondent mailed Mr. Desnoyers materials regarding a specific litter of greyhound puppies. That material provided, in pertinent part: MC'S Grandmaster Litter Syndication... Participate in the ownership of a litter of eight. A beautiful litter of eight pups (7 females, 1 male) out of Spumescent Queen by MC's Grandmaster is being offered to the first eight people committing for a unit in this outstanding breeding. Each individual will purchase one or more units in this litter at a cost of $5,000.00 per unit. The greyhounds will race under the control of Hanover Farms. Every unitholder will name a greyhound for each unit purchased. The prefix "Hanover" will be in each name, therefore the unitholder may select a name with no more than eight (8) characters. Each unit will represent a 1/8th interest in the entire litter, thereby enabling unitholders to share in the return on all the successes of the greyhounds in his litter. In addition, a 40 % commission Bill be paid to owners, rather than the standard 35 %. All materials furnished by Respondent to Mr. Desnoyers stressed the profitability of winning greyhounds and the successes Respondent had experienced IA past racing. Of the two programs outlined in paragraphs 5 and 6, Mr. Desnoyers advised Respondent that he would purchase an interest in the Grandmaster syndication. Accordingly, he remitted a $3000 deposit and pledged to pay the balance of $2000 within 60 days. An agreement between Respondent and Mr. Desnoyers was executed on July 22, 1986. Contrary to Mr. Desnoyer's intention, that agreement provided for the purchase of an individual greyhound as described in paragraph 5. Mr. Desnoyers did not, however, despite full payment, receive a greyhound from the Grandmaster litter. Contract notwithstanding, Respondent advised Mr. Desnoyers that his participation in the syndication would be as described in paragraph 6. Moreover, since th( litter was whelped March 1, 1986, it was not anticipated that the greyhounds would begin racing until some 16 to 20 months from that date. For the interim period, it was intended that Respondent would retain possession of the Grandmaster litter, would obtain appropriate registration for them, would assure proper training for the dogs, and would place them with a suitable kennel for racing at the designated time. Unfortunately, Respondent received television coverage which resulted in significant financial damage to its program. According to Mr. Pincus, a CNN defamatory account of Respondent's business ultimately caused it to go out of business in 1986. Consequently, Respondent sent Mr. Desnoyers correspondence which provided, in part: As you may know, a program recently appeared on television that caused great damage to Hanover Farms, Inc. It is the opinion of management that certain statements made in the telecast were false and defamatory. We are consulting our attorneys concerning appropriate litigation. As a result of the defamation, we are unable to continue to feed, board, raise and train your greyhound. The MC Grandmaster litter program has been converted to individual ownership. Your greyhound is located at Kenneth L. Griffins' (sic) Greyhound Farm, Route 1, Box 246 W., Morriston, Florida. 32668. The telephone number is (904) 528-3772. Contact Kenneth Griffin directly and arrange for him to complete your greyhound training. We regret the necessity of doing this however, we are victims of a situation beyond our control. Mr. Desnoyers did not receive one of the Grandmaster puppies.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Department of Banking and Finance, Division of Securities enter a final order requiring the Respondent to cease and desist from the sale of unregistered securities. DONE and ENTERED this 29th day of May, 1990, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH 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 30th day of May, 1990. APPENDIX TO CASE NO. 89-4558 RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE DEPARTMENT: Paragraphs 1 through 7 are accepted. The first sentence of paragraph 8 is accepted. The remainder of the paragraph is rejected as contrary to the weight of the evidence. Paragraph 9 is accepted. Paragraph 10 is rejected as hearsay or irrelevant. The substantive fact of paragraph 11 is accepted. Paragraphs 12 through 21 are accepted. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE RESPONDENT: 1. None submitted. COPIES FURNISHED: Howard W. Mazloff LAW OFFICES OF HOWARD W. MAZLOFF, P.A. Dadeland Towers South, Suite 425 9400 South Dadeland Boulevard Miami, Florida 33156 Robert K. Good Assistant General Counsel Office of the Comptroller 400 West Robinson Street Suite 501 Orlando, Florida 32801 Hon. Gerald Lewis Comptroller, State of Florida The Capitol Tallahassee, Florida 32399-0350 William G. Reeves General Counsel Department of Banking and Finance The Capitol, Plaza Level, Rm. 1302 Tallahassee, Florida 32399-0350
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 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.
