02-004025PL Department Of Business And Professional Regulation, Division Of Pari-Mutuel Wagering vs. Gregory H. Mitchell Status: Closed Recommended Order on Thursday, May 22, 2003.

Summary: Owner raced four dogs in five races; all dogs` urine samples tested positive for cocaine derivative. License revoked with fine totaling $10,000.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF PARI-MUTUEL )

WAGERING, )

)

Petitioner, )

)

vs. ) Case No. 02-4025PL

)

GREGORY H. MITCHELL, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice a formal administrative hearing was held

before the Division of Administrative Hearings, by Fred L.

Buckine, Administrative Law Judge, on April 9, 2003, in Sarasota,

Florida.

APPEARANCES

For Petitioner: Joseph M. Helton, Jr., Esquire

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-2202

For Respondent: No appearance

STATEMENT OF THE ISSUES

The issues in this case are whether Respondent,

owner/trainer of record of a greyhound that finished in first

place, a greyhound that finished in second place, and a greyhound

that finished in third place in three separate races, and two

greyhounds that ran and finished out of the money in two separate

races, is legally responsible for the prohibited substance found

in the urine sample of each of the five greyhounds taken

immediately after each race in violation of Section

550.2415(1)(a), Florida Statutes, and if so, what penalty should

be imposed.

PRELIMINARY STATEMENT

On October 16, 2002, the Agency referral, the Administrative

Complaint, and the Election of Rights were filed with the

Division of Administrative Hearings. On October 17, 2002, the

Initial Order was issued, and Petitioner's response thereto was

filed on October 24, 2002. On October 30, 2002, the Notice of

Hearing, scheduling the final hearing for December 18, 2003, in

Sarasota, Florida, and the Order of Pre-Hearing Instructions were

entered.

On December 4, 2002, Petitioner filed an Agreed Motion for

Continuance, and on December 6, 2002, an Order granting the

continuance and rescheduling the final hearing for January 9,

2003, was entered. On December 26, 2002, Petitioner filed a

Motion to Relinquish Jurisdiction and a Motion for Continuance.

By Order of January 3, 2003, Petitioner's Motion for Continuance

was granted, rescheduling the final hearing for January 14, 2003.

By Order of January 7, 2003, Petitioner's Motion to Relinquish

Jurisdiction was denied. On January 8, 2003, Respondent filed a

letter requesting a continuance and abatement of this case, which

was granted by Order dated January 13, 2003, with parties to

advise of the status by February 28, 2003. On February 27, 2003,

Respondent advised that he was prepared to represent himself. On

March 10, 2003, a Notice of Hearing scheduling the final hearing

for April 9, 2003, in Sarasota, Florida, and an Order of Pre-

Hearing Instructions were issued.

At the final hearing, Respondent, Gregory H. Mitchell, did

not appear, nor did anyone appear on his behalf. All Orders and

all Notices were mailed to Respondent's address of record, and

several telephone attempts to contact him were made to telephone

numbers of record without success. Petitioner presented the

testimony of two witnesses: Margaret Wilding, Associate Director

of the University of Florida Racing Laboratory, who was qualified

as an expert in forensic toxicology, and James Decker,

Investigator Supervisor, Division of Pari-Mutuel Wagering,

Department of Business and Professional Regulation. Petitioner

offered 23 exhibits (P-1 through P-23) that were accepted into

evidence.

On April 28, 2003, a Transcript of the proceeding was filed.

Petitioner's Proposed Recommended Order was filed on

May 13, 2003, and has been considered by the undersigned in the

formulation of this Recommended Order.

FINDINGS OF FACT

1. 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.

2. At all times relevant and material to this proceeding,

Respondent, Gregory H. Mitchell, was the holder of a professional

individual occupational pari-mutuel license, number 129829,

issued by the Division on July 1, 2002, with an expiration date

of June 30, 2002.

3. At all times relevant and material to this proceeding,

the Sarasota Kennel Club was a permit holder authorized to

conduct greyhound racing and pari-mutuel wagering in the State of

Florida and was assigned track number 153 by the Division. The

Division of Pari-Mutuel Wagering Form 503 identified the name and

location of each race track where a greyhound's urine sample was

collected.

4. At all times relevant and material to this proceeding,

Respondent was the owner/trainer of record for each of the

greyhounds who were entered in races at the Sarasota Kennel Club

on the following dates and who had urine samples immediately

taken and examined: (1) March 1, 2002, "Fly Bye Pumpkint"

finished third in the third race, and the urine sample collected

was numbered 842141; (2) March 11, 2002, "Greys Ice Star"

finished eighth in the eleventh race, and the urine sample

collected was numbered 852361; (3) March 12, 2002, "Fly Bye

Pumpkint" finished fifth in the fourth race, and the urine sample

collected was numbered 852399; (4) March 13, 2002, "Twilite

Hossplay" finished second in the third race, and the urine sample

collected was numbered 852439; and (5) April 8, 2002, "Dia's-

White-Tip" finished first in the fourth race, and the urine

sample collected was numbered 852562.

5. The hereinabove five urine samples were forwarded to the

University of Florida Racing Laboratory. The Racing Laboratory

tested the urine samples and found that each urine sample tested

contained benzoylecognine, a metabolite that is found only in

cocaine.

6. Cocaine is a Class I drug according to the Association

of Racing Commissioners International Classification System.

CONCLUSIONS OF LAW

7. The Division of Administrative Hearings has jurisdiction

over the parties and the subject matter of this proceeding

pursuant to Section 550.0251 and Subsection 120.57(1), Florida

Statutes.

8. The Division is the agency of the State of Florida

charged with the regulation of the pari-mutuel wagering industry

pursuant to Section 550.0251, Florida Statutes.

9. The standard of proof required to discipline a licensee

is that of clear and convincing evidence. See Department of

Banking and Finance, Division of Securities and Investor

Protection v. Osborne Stern and Company , 670 So. 2d 932 (Fla.

1996); Ferris v. Turlington , 510 So. 2d 292, 294 (Fla. 1987),

quoting from Reid v. Florida Real Estate Commission , 188 So. 2d

846, 851 (Fla. 2nd DCA 1966) that:

The power to revoke a license should be

exercised with no less careful circumspection

than the original granting of it. And the

penal sanctions should be directed only

toward those who by their conduct have

forfeited their right to the privilege, and

then only upon clear and convincing proof of

substantial causes justifying the forfeiture.

10. The court further amplified the clear and convincing

evidence standard. See In re: Davey , 645 So. 2d 398, 404 (Fla.

1994), quoting, with approval, from Slomowitz v. Walker , 429 So.

2d 797, 800 (Fla. 4th DCA 1983), the court stated that:

[C]lear and convincing evidence requires

that the evidence must be found to be

credible; the facts to which the witnesses

testify must be distinctly remembered; the

testimony must be precise and explicit and

the witnesses must be lacking in confusion as

to the facts in issue. The evidence must be

of such weight that it produces in the mind

of the trier of fact a firm belief or

conviction, without hesitancy, as to the

truth of the allegations sought to be

established.

11. Subsections 550.2415(1)(a), (b), (c), (2), and (3)(a),

Florida Statutes, in pertinent part, provide that:

(1)(a) The racing of an animal with any

drug, medication, stimulant, depressant,

hypnotic, narcotic, local anesthetic, or

drug-masking agent is prohibited. It is a

violation of this section for a person to

administer or cause to be administered any

drug, medication, stimulant, depressant,

hypnotic, narcotic, local anesthetic, or

drug-masking agent to an animal which will

result in a positive test for such substance

based on samples taken from the animal

immediately prior to or immediately after the

racing of that animal. Test results and the

identities of the animals being tested and of

their trainers and owners of record are

confidential and exempt from s. 119.07(1) and

from s. 24(a), Art. I of the State

Constitution for 10 days after testing of all

samples collected on a particular day has

been completed and any positive test results

derived from such samples have been reported

to the director of the division or

administrative action has been commenced.

(b) It is a violation of this section for

a race-day specimen to contain a level of a

naturally occurring substance which exceeds

normal physiological concentrations. The

division may adopt rules that specify normal

physiological concentrations of naturally

occurring substances in the natural untreated

animal and rules that specify acceptable

levels of environmental contaminants and

trace levels of substances in test samples.

(c) The finding of a prohibited substance

in a race-day specimen constitutes prima

facie evidence that the substance was

administered and was carried in the body of

the animal while participating in the race.

(2) Administrative action may be taken by

the division against an occupational licensee

responsible pursuant to rule of the division

for the condition of an animal that has been

impermissibly medicated or drugged in

violation of this section.

(3)(a) Upon the finding of a violation of

this section, the division may revoke or

suspend the license or permit of the violator

or deny a license or permit to the violator;

impose a fine against the violator in an

amount not exceeding $5,000; require the full

or partial return of the purse, sweepstakes,

and trophy of the race at issue; or impose

against the violator any combination of such

penalties. The finding of a violation of this

section in no way prohibits a prosecution for

criminal acts committed.

12. Rule 61D-6.002, Florida Administrative Code, in

pertinent part, provides that:

(1) The trainer of record shall be

responsible for and be the absolute insurer

of the condition of the horses or racing

greyhounds, he/she enters to raceainers,

kennel owners and operators are presumed to

know the rules of the division.

(2) Each permitholder of a thoroughbred,

harness, or greyhound racing facility shall

provide and maintain a detention enclosure in

a location approved by the division for the

purpose of securing urine, blood or other

samples from racing greyhounds or horses.

The detention enclosure at horse tracks shall

contain a wash rack, an office for the

division veterinarian, and not less than six

detention stalls with an adjacent walking

ring. The detention enclosure at greyhound

tracks shall be located within a reasonable

distance of the veterinary assistant

detention office and shall have a chain link

perimeter fence which will prevent access of

unauthorized persons. The detention

enclosure shall be large enough to allow

three dogs to be walked simultaneously for

the purpose of taking urine samples, be

partially covered to allow sampling during

inclement weather, and have sufficient

lighting to allow sampling during hours of

darkness.

13. By the evidence of record, Petitioner has proven

clearly and convincingly that Respondent was owner/trainer of

record (1) on March 1, 2002, of "Fly Bye Pumpkint," the dog that

finished third in the third race, and the urine sample collected

was numbered 842141; (2) on March 11, 2002, of "Greys Ice Star,"

the dog that finished eighth in the eleventh race, and the urine

sample collected was numbered 852361; (3) on March 12, 2002, of

"Fly Bye Pumpkint," the dog that finished fifth in the fourth

race, and the urine sample collected was numbered 852399; (4) on

March 13, 2002, of "Twilite Hossplay," the dog that finished

second in the third race, and the urine sample collected was

numbered 852439; and (5) on April 8, 2002, of "Dia's-White-Tip,"

the dog that finished first in the fourth race, and the urine

sample collected was numbered 852562.

14. Petitioner has also proven that after each race

hereinabove identified a urine sample was taken from each

greyhound dog hereinabove, separately numbered for

identification, and forwarded to, examined, and tested at the

University of Florida and that each urine sample tested contained

the illegal substance benzoylecognine.

15. The above rule, also known as the Absolute Insurer

Rule, is based on strict liability as a condition of licensure.

Challenges to the validity of this rule have not been successful,

and the plain reading of Subsection 550.2415(2), Florida

Statutes, makes it clear that the Division has authority to hold

Respondent as owner/trainer of record responsible for the

condition of the greyhounds, and the owner/trainer of record need

not be the person who actually administered the impermissible

drug. See Division of Pari-Mutuel Wagering v. Caple , 362 So. 2d

1350 (Fla. 1978).

16. There is clear and convincing evidence that Respondent

is the owner/trainer of record for the greyhounds in this

proceeding. Under the above-established case law of Florida,

Respondent is strictly responsible for the greyhounds' condition

if found to have tested positive for impermissible drugs. In

this case, each dog hereinabove identified in Finding of Fact 4

was found to have impermissible drugs, and Respondent is

responsible.

17. Subsection 550.2451(1)(c), above cited, states that a

positive test in a race day specimen is prima facie evidence of a

statutory violation. Petitioner established by clear and

convincing evidence that for each of the five dogs identified

herein, the individual race-day specimen contained

benzoylecognine and egconine methyl ester, metabolites of

cocaine, a prohibited drug.

18. Respondent did not appear and thus failed to rebut

Petitioner's prima facie case that a prohibited drug, cocaine,

was administered and was carried in the body of the greyhounds

identified in Finding of Fact 4 hereinabove, while participating

in the races identified in Finding of Fact 4 hereinabove.

19. Penalty guidelines for Class I impermissible substances

were adopted on February 8, 2001, by amendment found in Rule 61D-

6.011(2)(a), Florida Administrative Code, which provides:

(2) Pursuant to Rule 61D-6.002, Florida

Administrative Code, the trainer of record is

the absolute insurer of the condition of an

animal he or she enters to race.

Consequently, when evidence of the presence

of an impermissible substance, or substances,

is presented either to the Division or to a

panel of stewards or judges, the Division or

the stewards or judges, absent aggravating or

mitigating circumstances, must impose on the

trainer of record one or more of the

following penalties in accordance with the

class of impermissible substance. Provided,

however, that any discipline imposed by the

stewards or judges shall not exceed their

authority pursuant to Section 550.1155,

Florida Statutes.

(a) Class I impermissible substances:

1. First violation $500 to $1,000 fine

suspension or revocation of license;

2. Any subsequent violation $1,000 to

$5,000 fine, suspension or revocation of

license.

20. The races in this case were conducted after the

adoption of the penalty guidelines referenced above; therefore,

under Rule 61D-6.011(2)(a), Florida Administrative Code, the

minimum fine for this case would be $500 for the first violation

and from $1,000 to $5,000 for the second, third, fourth and fifth

violations committed by Respondent.

21. In addition to the fines, the return of purses won due

to the first-place finish, the second-place finish, and the

third-place finish of the greyhounds by Respondent is appropriate

and authorized under Subsection 550.2415(3)(a),

Florida Statutes, above cited. See Hyman v. State, Department of

Business Regulation, Division of Pari-Mutuel Wagering , 431 So. 2d

603 (Fla. 3rd DCA 1983). The reasoning of the court in cases

involving racing that requires the return of the purse is that it

is appropriate where an unfairly advantaged animal has

participated in a pari-mutuel event, regardless of any proof of

wrongdoing.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Department of Business and

Professional Regulation, Division of Pari-Mutuel Wagering, enter

a final order in this matter revoking the occupational license of

Respondent, Gregory H. Mitchell. It is further

RECOMMENDED that the following fines be imposed upon

Respondent in the amount of $1,000 for the first-place finish

violation; $1,500 for the second-place finish violation; $2,000

for the third-place finish violation; $2,500 for the fourth-place

finish violation; and $3,000 for the fifth-place finish

violation, for a total fine of $10,000. It is further

RECOMMENDED that the Division order the purses received by

Respondent, as a result of the first-place finish, the second-

place finish, and the third-place finish, be returned forthwith

to the Division.

DONE AND ENTERED this 22nd day of May, 2003, in Tallahassee,

Leon County, Florida.

___________________________________

FRED L. BUCKINE

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 22nd day of May, 2003.

COPIES FURNISHED :

Joseph M. Helton, Jr., Esquire

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-2202

Gregory H. Mitchell

1010 Villagio Circle

Sarasota, Florida 34237

Hardy L. Roberts, III, General Counsel

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399-2202

David J. Roberts, Director

Division of Pari-Mutuel Wagering

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15

days from the date of this Recommended Order. Any exceptions to

this Recommended Order should be filed with the agency that will

issue the Final Order in this case.