05-000601PL Department Of Business And Professional Regulation, Division Of Pari-Mutuel Wagering vs. Kimberly A. Hudson Status: Closed Recommended Order on Wednesday, June 29, 2005.

Summary: Petitioner should impose a $1,000 fine on Respondent who effectively interferred with the collection of urine samples from a winning greyhound by insisting on the presence of two dogs in the detention area.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF PARI - MUTUEL )

WAGERING, )

)

Petitioner, )

)

vs. ) Case No. 05 - 0601PL

)

KIMBERLY A. HUDSON, )

)

Respondent. )

)

RECOMMENDED ORDER

Administrative Law Judge Daniel Manry conducted the

administrative hearing in this proceeding on May 19, 2005, in

St. Petersburg, Florida, on behalf of the Division of

Administrative Hearings (DOAH).

APP EARANCES

For Petitioner: S tefan Thomas Hoffer, Esquire

Division of Pari - Mutuel Wagering

Department of Business and

Professional Regulation

1940 North Monroe Street

Tal lahassee, Florida 32399 - 2202

For Respondent: Kimberly A. Hudson, pro se

5622 Tangerine Avenue, South

Gulfport, Florida 33711

STATEMENT OF THE ISSUE

The issue for determination is whether Petitioner should

discipline R espondent's pari - mutuel wagering occupational

license for allegedly preventing authorized personnel from

taking a urine sample from a greyhound after a race in violation

of Florida Administrative Code Rule 61D - 6.005(9).

PRELIMINARY STATEMENT

On or about No vember 9, 2004, Petitioner filed a one - count

Administrative Complaint against Respondent. Respondent timely

requested an administrative hearing.

At the hearing, Petitioner presented the testimony of four

witnesses and submitted 11 exhibits for admission into evidence.

Respondent testified and submitted three exhibits for admission

into evidence.

The identity of the witnesses and exhibits and the rulings

regarding each are reported in the Transcript of the hearing

filed with DOAH on June 6, 2005. Peti tioner and Respondent

timely filed their respective proposed recommended orders (PROs)

on June 15 and May 25, 2005. Petitioner's Motion to Strike

Respondent's PRO is denied.

FINDINGS OF FACT

1. Petitioner is the agency responsible for regulating

pari - mu tuel wagering in the state. Respondent holds pari - mutuel

wagering occupational license number 467790 - 1021.

2. On August 4, 2004, Respondent was the trainer of record

of two racing greyhounds named " Vonda Easy " and " Zito Easy. "

Both dogs competed in the fourth race of the matinee performance

at Sanford - Orlando Kennel Club (the race).

3. Vonda Easy finished first in the race. As the winner

of a race, Vonda Easy was subject to mandatory drug testing

pursuant to Florida Administrative Code Rule 61D - 6.005( 1).

4. Veterinary Assistant Mr. Anthony Manfredi met

Respondent at the detention enclosure in the finish area for the

purpose of walking Vonda Easy and collecting a post - race urine

sample. Respondent brought Vonda Easy and Zito Easy to the

detention ar ea and refused to walk Vonda Easy without Zito Easy.

Respondent effectively interfered with the required urine

collection from Vonda Easy by brining two dogs to the detention

area and insisting that both dogs walk during the urine

collection process in vi olation of Florida Administrative Code

Rule 61D - 6.005(9).

5. Mr. Manfredi asked Respondent to give Zito Easy to

someone else while Mr. Manfredi attempted to get a urine sample

from Vonda Easy. Respondent told Mr. Manfredi that she was

going to walk b oth dogs together since they were from the same

kennel. Another person was not available at the detention area

to hold Zito Easy during the urine collection from Vonda Easy.

6. Mr. Manfredi asked Respondent a second time to only

bring one dog with her du ring the urine sample collection

process. He informed Respondent that having more than one dog

in the urine sample collection area would interfere with his

ability to collect a urine sample.

7. Respondent refused to bring only one dog into the urine

sa mple collection area. Rather, Respondent brought two

greyhounds with her into the urine sample collection area and

effectively prevented the collection of the required urine

sample.

8. The purpose of collecting a urine sample from a racing

greyhound is to protect the health and welfare of the racing

greyhound by testing to see if any impermissible substances are

present in the body of the racing greyhound. The collection of

a post - race urine sample from a racing greyhound also ensures

that the medicat ion rules of the state are being followed.

ainers, including Respondent, must comply with

procedures and policies designed to ensure that the correct

animal has been sampled and that there is little or no

opportunity for any kind of contamination t o occur at the test

siteainer compliance ensures the integrity of the testing

process.

10. The procedures and policies for testing animals are

set forth in the Greyhound Veterinary Assistant Handbook

(Handbook). In relevant part, the Handbook pro hibits an

owner/trainer from walking two dogs at once in the finish area

after a race.

11. The urine sample collection area at the track is

limited and does not easily accommodate two dogs. Walking two

greyhounds at the same time may cause a sample to go uncollected

due to having the presence of the other greyhound. The presence

of two dogs increases the likelihood of contaminating a post -

race urine sample. The presence of Vonda Easy and Zito Easy in

fact prevented the collection of the mandatory urin e sample.

CONCLUSIONS OF LAW

12. DOAH has jurisdiction over the parties and the subject

matter of this proceeding pursuant to Subsection 120.57(1),

Florida Statutes (2004). DOAH provided the parties with

adequate notice of the administrative hearing.

13. Petitioner has the burden of proof in this proceeding.

Petitioner must prove by clear and convincing evidence that

Respondent committed the acts alleged in the Administrative

Complaint and the reasonableness of the proposed penalty.

Ferris v. Turlingto n , 510 So. 2d 292 (Fla. 1987).

14. Petitioner satisfied its burden of proof. Petitioner

showed by clear and convincing evidence that Respondent

interfered with the prescribed method of urine collection by

brin g ing two dogs to the detention area and refus ing to allow

authorized personnel to collect a mandatory urine sample in

violation of Florida Administrative Code Rule 61D - 6.005(9).

15. Petitioner proposes in its PRO to suspend Respondent's

license for seven days and to impose an administrative fine o f

$1,000 pursuant to Subsections 550.105(5)(b) and (d), Florida

Statutes (2004). The record reveals no prior license discipline

or other aggravating circumstances. This is a single isolated

event. The record does not reveal that the offense is part of a

pattern and practice.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law it is

RECOMMENDED that the Petitioner enter a f inal o rder finding

that Respondent violated Florida Administrative Code

Rule 61D - 6.005(9), and impose an administrative fine of $1,000

pursuant to Subsection 550.105(5)(d), Florida Statutes (2004).

DONE AND ENTERED this 29 th day of June, 2005, in

Tallahassee, Leon County, Florida.

S

DANIEL MANRY

Administrative Law Judge

D ivision of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 29 th day of June, 2005.

COPIES FURNISHED :

Stefan Thomas Hoffer, Esquire

Division of Pari - Mutuel Wagering

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399 - 2202

Kimberly A. Hudson

5622 Tange rine Avenue, South

Gulfport, Florida 33711

David J. Roberts, Director

Division of Pari - Mutuel Wagering

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399 - 0792

Leon Biegalski, Genera l Counsel

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399 - 2202

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from th e 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.