04-003638PL Department Of Business And Professional Regulation, Division Of Pari-Mutuel Wagering vs. Jennette D. Holmes Status: Closed Recommended Order on Friday, February 4, 2005.

Summary: The Greyhound tested positive for a metabolite of Cocaine. The trainer is statutorily responsible for the condition of the dog.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF PARI - MUTUEL )

WAGERING, )

)

Petitioner, )

)

vs. ) Case No. 04 - 3638PL

)

JENNETTE D. HOLMES, )

)

Respondent. )

)

RECOMMENDED ORDER

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

on December 14, 2004, in Fort Myers, Florida, before Susan B.

Harrell, a designated Administrative Law Judge of the Division

of Administrative H earings.

APPEARANCES

For Petitioner: S. Thomas Peavy Hoffer, Esquire

Ralf E. Michels, Esquire

Division of Pari - Mutuel Wagering

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399 - 2202

For Respondent: Jennette Holmes, pro se

11900 Forest Mere Drive, No. 101

Bonita Springs, Florida 34135

STATEMENT OF THE ISSUES

Whether Respondent violated Subsection 550.2415(1)(a),

Florida Statutes (2004), and, if so, what discipline should be

imposed.

PRELIMINARY STATEMENT

On June 29, 2004, Petitioner, Department of Business and

Professio nal Regulation, Division of Pari - Mutuel Wagering

(Department), filed an Administrative Complaint against

Respondent, Jennette D. Holmes (Holmes), alleging that she

violated Subsection 550.2415(1)(a), Florida Statutes (2004).

Holmes requested an administra tive hearing, and the case was

forwarded to the Division of Administrative Hearings on

October 6, 2004, for assignment to an Administrative Law Judge.

At the final hearing, Petitioner called Charles H. Taylor

and Margaret Wilding as its witnesses. Petitio ner's Exhibits 1

through 7 were admitted in evidence. Respondent testified in

her own behalf and called the following witnesses: James J.

Blanchard, Michael J. Labun, Charles H. Taylor, Patricia M.

Evans, and Margaret Wilding. Respondent's Exhibits 1 th rough 3

were admitted in evidence. Respondent's Exhibit numbered 4 was

rejected.

The one - volume Transcript was filed on January 12, 2005.

Petitioner filed its Proposed Recommended Order on January 20,

2005. As of the date of this Recommended Order, Re spondent has

not filed a proposed recommended order.

FINDINGS OF FACT

1. At all times material to this proceeding, Holmes held a

pari - mutuel wagering occupational license number 832105 - 1021,

issued by the Department.

2. On May 23, 2004, Holmes was the tr ainer of record of

Hoov's KC, a racing greyhound. Hoov's KC was entered in,

participated in, and won the first race of the afternoon

performance at Naples - Ft. Myers Greyhound Track on May 23, 2004.

3. Immediately after the race, a urine sample was

col lected from Hoov's KC by a veterinary assistant at the

veterinary shack at the race track. The veterinary shack is

operated by the Department, and the veterinary assistant is

employed by the Department. The veterinary assistant collected

the specimen by using a sterilized cup which is attached to a

three - foot stick. The cups are kept in an unlocked box in the

veterinary shack. After Hoov's KC's urine sample,

numbered 947445, was collected, the cup was sealed, and placed

in a freezer, which is kept locke d. Holmes watched the

collection of the specimen and the sealing of the cup containing

the specimen.

4. A specimen card was filled out for the urine sample,

listing the number of the sample, the name of the dog, the owner

and the trainer, and other infor mation identifying the dog. The

veterinary assistant signed the card, and then Holmes, as the

owner's witness to the sampling and sealing of the specimen,

signed the card.

5. The veterinary assistant prepared a Form 503, which

listed each of the samples taken at the racetrack on May 23,

2004. The form listed Hoov's KC and its urine specimen number.

The urine sample and a redacted copy of the form were sent to

the racing laboratory at the University of Florida, where the

sample was to be tested for any p rohibited substances.

Information, other than the specimen number, which would

identify the dog, the trainer, or the owner were redacted.

6. The racing laboratory received the urine specimen in a

locked cooler and assigned the urine sample an internal

la boratory number of 77132L for tracking while the sample was

being tested. The urine sample was tested using gas

chromatography/mass spectrometry and found to contain

benzoylecgonine, a metabolite of cocaine, which is a topical

anesthetic and a Class I dru g, according to guidelines

promulgated by the Association of Racing Commissioners

International Inc.

7. At times, Holmes has found the veterinary shack

unattended and unlocked. Holmes and James Blanchard, a kennel

owner in the Fort Myers area, have seen sticks with collection

cups attached placed in trash barrels in the area where the

specimens are collected. Holmes has seen food and soft drinks

in the collection areas. However, there was no evidence

presented to show that the collection tool used by th e

veterinary assistant for the collection of Hoov's KC's sample

was contaminated. Holmes witnessed both the collection and the

sealing of the sample at issue and did not state that she

observed any contamination of the sample.

8. Holmes' pari - mutuel wage ring license has not been

previously disciplined for a violation of Subsection

550.2415(1)(a), Florida Statutes (2004).

CONCLUSIONS OF LAW

9. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proce eding. §§ 120.569 and 120.57, Fla. Stat. (2004).

10. The Department has the burden to establish by clear

and convincing evidence the allegations contained in the

Administrative Complaint. Ferris v. Turlington , 510 So. 2d 292

(Fla. 1987). The Department has alleged that Holmes violated

Subsection 550.2415(1)(a), Florida Statutes (2004), which

provides:

The racing of an animal with any drug,

medication, stimulant, depressant, hypnotic,

local anesthetic, or drug - masking agent is

prohibited. It is a vi olation 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 bas ed on samples

taken from the animal immediately prior to

or immediately after the racing of that

animal.

11. Subsection 550.2415(1)(c), Florida Statutes (2004),

provides:

The finding of a prohibited substance in a

race - day specimen constitutes prima fac ie

evidence that the substance was administered

and was carried in the body of the animal

while participating in the race.

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

provides:

The trainer of record shall be responsible

for and be the absolute ins urer of the

condition of the horses or racing

greyhounds, he/she enters to race.

Trainers, kennel owners and operators are

presumed to know the rules of the division.

13. The Department has established by clear and convincing

evidence that a violation o f Subsection 550.2415(1)(a), Florida

Statutes (2004), occurred. Immediately after Hoov's KC raced on

May 23, 2004, a urine sample was taken. The sample was secured

and sent to a racing laboratory, where it tested positive for

benzoylecgonine, a metabolit e of Cocaine, which is a Class I

drug. Holmes was the trainer of record for Hoov's KC on May 23,

2004, and as such, she was responsible for and the absolute

insurer of the condition of Hoov's KC.

14. No evidence was presented that would indicate that the

testing procedures outlined in Florida Administrative Code

Rule 61D - 6.005 were not followed.

15. Florida Administrative Code Rule 61D - 6.011(2),

provides for penalty guidelines for a violation of Subsection

550.2415(1)(a), Florida Statutes (2004). For a first violation

in which a Class I impermissible substance is found, the

guidelines provide a penalty of "$500 to $1,000 fine, suspension

or revocation of license."

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOM MENDED that a final order be entered finding that

Jennette D. Holmes violated Subsection 550.2415(1)(a), Florida

Statutes (2004); imposing a $500 fine; and suspending her

license for five days.

DONE AND ORDERED this 4th day of February, 2005, in

Tallahass ee, Leon County, Florida.

S

SUSAN B. HARRELL

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax F iling (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 4th day of February, 2005.

COPIES FURNISHED :

Ralf E. Michels, Esquire

Division of Pari - Mutuel Wagering

Department of Business and

Professio nal Regulation

1940 North Monroe Street

Tallahassee, Florida 32399 - 2202

Jennette D. Holmes

11900 Forest Mere Drive, No. 101

Bonita Springs, Florida 34135

S. Thomas Peavy Hoffer, Esquire

Division of Pari - Mutuel Wagering

Department of Business and

Prof essional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399 - 2202

Leon Biegalski, General Counsel

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399 - 2202

David J. Robert s, 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 with in

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.