01-000262PL Department Of Business And Professional Regulation, Division Of Pari-Mutuel Wagering vs. Douglas J. Levkoff Status: Closed Recommended Order on Tuesday, June 12, 2001.

Summary: Trainer is absolute insurer of condition of racing animals. Fine and suspension warranted when race animal tests positive for metabolite of cocaine.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, DIVISION )

OF PARI-MUTUEL WAGERING , )

)

Petitioner , )

)

vs. ) Case No. 01-0262PL

)

DOUGLAS J. LEVKOFF , )

)

Respondent. )

__________________________________)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case on

March 29, 2001, in Miami, Florida, before Administrative Law

Judge Michael M. Parrish of the Division of Administrative

Hearings.

APPEARANCES

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

Department of Business and

Professional Regulation

Division of Pari-Mutuel Wagering

Northwood Centre

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-2202

For Respondent : Douglas J. Levkoff

7218 West 4th Avenue

Hialeah, Florida 33014

STATEMENT OF THE ISSUE

This is a license discipline case in which the Petitioner

seeks to take disciplinary action against a licensee on the basis

of allegations in an Administrative Complaint in which the

Respondent is charged with two violations of Section

550.2415(1)(a), Florida Statutes.

PRELIMINARY STATEMENT

Following the issuance and service of the Administrative

Complaint, the Respondent made a timely request for an

evidentiary hearing. The case was then transferred to the

Division of Administrative Hearings, where it was scheduled for

hearing. On March 9, 2001, the parties filed a written

stipulation, by means of which they stipulated to some of the

facts in this case.

At the final hearing on March 29, 2001, the Petitioner

presented the testimony of three witnesses and offered nine

exhibits, all of which were received in evidence. The Respondent

testified on his own behalf, but did not call any additional

witnesses. The Respondent did not offer any exhibits.

At the conclusion of the hearing, the deadline for filing

proposed recommended orders was established as ten days following

the filing of the transcript. The transcript was filed on

April 26, 2001. Because the Respondent did not receive timely

notice of the filing of the transcript, the deadline for filing

proposed recommended orders was extended for all parties until

May 29, 2001. The Petitioner filed a timely Proposed Recommended

Order. As of the date of this Recommended Order, the Respondent

has not filed any post-hearing documents.

FINDINGS OF FACT

1. The Petitioner is the State of Florida, Department of

Business of Professional Regulation, Division of Pari-Mutuel

Wagering (Division) which is created by Section 20.165(2)(f),

Florida Statutes.

2. The Respondent, Douglas J. Levkoff, is the holder of an

unrestricted U-1 Professional Pari-Mutuel License, License Number

10311836-1081, issued by the Division on or about July 1, 2000.

3. West Flagler is a permitholder authorized to conduct

greyhound racing and pari-mutuel wagering in the State of

Florida.

4. On September 9, 2000, the Respondent was the trainer for

a racing greyhound named "Dodge A Ram."

5. The racing greyhound "Dodge A Ram" finished third in the

ninth race of the evening performance of West Flagler on

September 9, 2000.

6. Immediately after the race a urine sample was collected

from "Dodge A Ram." The urine sample was assigned sample number

651573.

7. The University of Florida Racing Laboratory tested urine

sample number 651573, and found it to contain Benzoylecgonine. 1

8. On September 23, 2000, the Respondent was the trainer

for a racing greyhound named "Izz Our Patsy."

9. The racing greyhound "Izz Our Patsy" finished first in

the sixth race of the matinee performance of West Flagler on

September 23, 2000.

10. Immediately after the race a urine sample was collected

from "Izz Our Patsy." The urine sample was assigned sample

number 652144.

11. The University of Florida Racing Laboratory tested

urine sample number 652144, and found it to contain

Benzoylecgonine. 2

12. Benzoylecgonine is a metabolite of Cocaine. It is the

primary marker of Cocaine in forensic technology. The metabolite

Benzoylecgonine is not produced by any drug other than Cocaine.

Cocaine is a Class 1 drug according to the Association of Racing

Commissioners International classification system.

13. The Respondent is the trainer of record for Sun Coast

Kennels, which provides greyhounds for racing to West Flagler

Greyhound Track. He is listed as the trainer for Sun Coast

Kennels on the kennel personnel roster filed with the Racing

Secretary at West Flagler.

14. Sun Coast Kennels is assigned kennel number 17 by West

Flagler for identification purposes. Specifically, the

Respondent provided the names of "Dodge A Ram" and "Izz Our

Patsy" to West Flagler through a listing of available greyhounds

and an official schooling, respectively.

CONCLUSIONS OF LAW

15. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding pursuant to Section 120.57(1), Florida Statutes.

16. The Division is the agency of the State of Florida that

is charged with the regulation of the pari-mutuel wagering

industry pursuant to Section 550.0251, Florida Statutes. The

Division has the burden of proving by clear and convincing

evidence that disciplinary action should be taken against

Respondent's occupational license. Ferris v. Turlington , 510 So.

2d 292 (Fla. 1987).

17. Section 550.2415(1)(a), Florida Statutes, reads as

follows:

(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.

18. Rule 61D-6.002(1), Florida Administrative Code, reads

as follows:

The trainer of record shall be responsible

for and the absolute insurer of the condition

of the horses or greyhounds he/she enters to

raceainers, kennel owners and operators

are presumed to know the rules of the

division.

19. Rule 61D-6.002(1), Florida Administrative Code, also

known as the Absolute Insurer Rule, is based on a theory of

strict liability as a condition of licensure, which is necessary

to protect the industry's integrity. In its decision upholding

the validity of the Absolute Insurer Rule, the Supreme Court of

Florida in Division of Pari-Mutuel Wagering, Department of

Business Regulation v. Caple , 362 So. 2d 1350 (Fla. 1978), held

as follows:

On review of these more recent authorities,

we are now persuaded that Florida should

align itself with the well reasoned majority

view. To protect the integrity of this

unique industry, it is really immaterial

whether "guilt" should be ascribed either

directly or indirectly to the trainer. The

rules were designed, and reasonably so, to

condition the grant of a trainer's license on

the trainer's acceptance of an absolute duty

to ensure compliance with reasonable

regulation governing the areas over which the

trainer has responsibility. Whether a

violation occurs as a result of the personal

acts of the trainer, of persons under his

supervision, or even of unknown third

parties, the condition of licensure has been

violated by the failure to provide adequate

control, and the consequence of the default

is possible suspension of the trainer's

license or a fine. We have no doubt that a

rule which both conditions a license and

establishes with specificity reasonable

precautionary duties within the competence of

the licensee to perform is both reasonable

and constitutional.

Caple , 362 So. 2d 1350, 1354-1355.

20. The evidence is clear and convincing that the

Respondent is the trainer of record for the greyhounds "Dodge A

Ram" and "Izz Our Patsy." By listing "Dodge A Ram" on the list

of available greyhounds and "Izz Our Patsy" on an official

schooling, the Respondent was the trainer who entered those dogs

to race. Therefore, under the established case law of Florida,

he is strictly responsible for their condition if they are found

to have tested positive for prohibited drugs.

21. Section 550.2415(1)(c), Florida Statutes, reads as

follows:

(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.

22. The effect of Section 550.2415(1)(c), Florida Statutes,

is to create a rebuttable presumption that an impermissible drug

was administered and that the drug was carried in the body of the

animal during the race on the day the specimen was collected. It

has been clearly and convincingly established that the greyhounds

trained by the Respondent produced race day specimens that

contained B enzoylecgonine, a metabolite of Cocaine, which is a

prohibited substance. Therefore, the Division has established

its prima facie case.

23. There has been no evidence proffered by the Respondent

that calls into question either the collection of the samples in

this case or the testing of the samples in this case. While the

Respondent alluded to one incident when a person was able to

enter the jenny pit area prior to a race, there is no evidence to

connect that incident to either of the races at issue in this

case. Therefore, the Respondent has failed to rebut the

Division's prima facie case that Cocaine was administered and was

carried in the bodies of the greyhounds "Dodge A Ram" and "Izz

Our Patsy" while participating in the races in question.

24. The Respondent was the trainer of record for the

greyhounds "Dodge A Ram" and "Izz Our Patsy," which ran in the

ninth race of the evening performance of West Flagler on

September 9, 2000, and in the sixth race of the matinee

performance of West Flagler on September 23, 2000, respectively.

Therefore, the Respondent is responsible for the two violations

of Section 550.2415(1)(a), Florida Statutes, as alleged in the

Administrative Complaint.

25. In a similar case recently decided by the Division of

Administrative Hearings, the Division of Pari-Mutuel Wagering has

entered a Final Order in Division of Pari-Mutuel Wagering vs.

Celestina M. Gangemi , DOAH Case No. 00-3816PL, DBPR Final Order

No. BPR-2001-01307. In that case, a thoroughbred horse trainer

was suspended for ten days and fined one hundred dollars ($100)

for a horse that tested positive for similar levels of

Benzoylecgonine as those found in the two greyhounds trained by

the Respondent. The Division of Pari-Mutuel Wagering also

adopted the recommendation that the purse at issue in that case

be returned as well. Therefore, it is appropriate to impose the

same penalty for each positive test in this case.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Division of Pari-Mutuel Wagering enter

a final order in this case suspending the Respondent's license

for a period of twenty days, imposing an administrative fine in

the total amount of $200.00, and requiring the return of any

purse that was received by the Respondent as a result of the two

races at issue in this case.

DONE AND ENTERED this 12th day of June, 2001, in

Tallahassee, Leon County, Florida.

___________________________________

MICHAEL M. PARRISH

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488- 9675 SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 12th day of June, 2001.

ENDNOTES

1/ The amount of Benzoylecgonine detected in this sample was

minute. It was estimated to be less than 10 nanograms per

milliliter.

2/ This sample also contained less than 10 nanograms per

milliliter of Benzoylecgonine.

COPIES FURNISHED:

Dr. Paul F. Kirsch, Director

Department of Business and

Professional Regulation

Division of Pari-Mutuel Wagering

Northwood Centre

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-2202

Hardy L. Roberts, III, General Counsel

Department of Business and

Professional Regulation

Division of Pari-Mutuel Wagering

Northwood Centre

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-2202

Joseph M. Helton, Jr., Esquire

Department of Business and

Professional Regulation

Division of Pari-Mutuel Wagering

Northwood Centre

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-2202

Douglas J. Levkoff

7218 West 4th Avenue

Hialeah, Florida 33014

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.