05-002345PL Department Of Business And Professional Regulation, Division Of Pari-Mutuel Wagering vs. Thomas M. Dudley, Sr. Status: Closed DOAH Final Order on Tuesday, July 26, 2005.

Summary: There was a basis to enter an Order of Summary Suspension.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS )

AND PROFESSIONAL REGULATION, )

DIVISION OF PARI - MUTUEL )

WAGERING, )

)

Petitioner, )

)

vs. ) Case No. 05 - 2345PL

)

THOMAS M. DUDLEY, SR., )

)

Respondent. )

)

FINAL ORDER

On July 21, 2005, at 11:00 Eastern Time (10:00 a.m. Central

Time), a postsuspension hearing was held in accordance with

Section 550.2415(3)(c), Florida Statutes (2004). The hearing

was held by video - telecon ference with Respondent located at a

site in Pensacola, Florida , with the court reporter, and other

participants located in Tallahassee, Florida . The hearing was

conducted in relation to the Order of Summary Suspension entered

in the Department of Busines s and Professional Regulation,

Division of Pari - Mutuel Wagering, Petitioner, vs. Thomas M.

Dudley, Sr., Respondent , Case Nos. 2005033377 and 2005033379 ,

under authority set forth in Section 550.2415(3)(b), Florida

Statutes (2004).

APPEARANCES

For Petitioner: Stefan Thomas Hoffer, Esquire

Department of Business and

Professional Regulation

Division of Pari - Mutuel Wagering

1940 North Monroe Street

Tallahassee, Florida 32399 - 2202

For Respondent: Thomas M. Dudley, Sr., p ro se

Post Office Box 425

Lillian, Alabama 36549

In the O rder of S ummary S uspension , reference is made

to Respondent 's P ar i - Mutuel Wagering occupational license

Number 1102016( 1021 ) , issued by the Division of Pari - Mutuel

Wagering and the expectation in accordance with Florida

Administrative Code Rule 61D - 6.002(1) that Respondent as "T he

trainer of record shall be responsible for and be the absolute

insurer of the condition of the . . . greyhounds he . . . enters

to race."

The Ord er of Summary Suspension goes on to state that

Respondent was the trainer of record and the absolute insurer of

the condition of greyhounds that teste d positive for the

substance Benzoylecgonine following races they participated in .

The basis for the Ord er of Summary Suspension is premised

u pon a two - count Administrative Complaint under the same

case numbers , alleging violations of Section 550. 2415(1)(a),

Florida Statutes (2004) , in relation to the greyhounds trained

by Respondent . The Administrat ive Complaint was att ached to the

Order of Summary Suspension .

Section 550.2415(1)(a), Florida Statutes (2004), prohibits

the racing of an animal with any drug , narcotic , or anesthetic

in its system . The Order of Summary Suspension and

Administrative Co mplaint refer to Benzoylecgonine as an

impermissible substance carried in the bodies of the

aforementioned greyhounds. Benzoylecgonine is described as

being a metabolite of C ocaine, a C lass I drug .

The Administrative Complaint in its two counts specific ally

describes two greyhounds on separate dates , for whom Respondent

was the trainer of record , who had raced at Pensacola Greyhound

Track, Inc. and tested positive for Benzoylecgonine ( a

metabolite of C ocaine) and/or a derivative thereof.

On June 24, 2005, the Order of Summary Suspension and

Administrative Complaint were entered and served on Respondent .

Respondent was noticed of his right to a postsuspension hearing

to challenge the Order of Summary Suspension consistent with the

criteria set forth i n Section 550.2415(3)(c), Florida Statutes

(2004). On June 24, 2005, Respondent elected to proceed with

the postsuspension hearing. At the time of the postsuspension

hearing Respondent had not made an election concerning his right

to a separate hearing t o contest the Administrative Complaint .

On June 29, 2005, the Division of Pari - Mutuel Wagering

forwarded the case to the Division of Administrative Hearings

for the conduct of the postsuspension hearing pursuant to

Section 550.2415(3)(c), Florida Stat utes (2004). That hearing

was scheduled to be heard on July 13, 2005. It was continued

until July 21, 2005, due to the consequences of Hurricane

Dennis , which made access to facilities in Pensacola, Florida,

imposs ible.

Petitioner moved for p e rmiss i on to amend the Administrative

Complaint and Order of Summary Suspension , to add a third count

to the Administrative Complain t involving another racing

greyhound, while referring to the proposed amended

Administrative Complaint through the proposed Order of S ummary

Suspension . The motion was filed July 19, 2005. The motion was

heard on July 21, 2005, when the postsuspension hearing

commenced. Respondent had opposed the motion given its timing .

The motion was denied . It was denied with the explanation that

should Petitioner intend to proceed with the second Order of

Summary Suspension and second Administrative Complaint , to

address the circumstances in relation to the third racing

greyhound , it must be done separate and apart from the case

involving the ori ginal Order of Summary Suspension and original

Administrative Complaint.

At the postsuspension hearing Petitioner presented the

test imony of Margaret Wilding and E rnest Barnes. Petitioner's

Exhibits one through nine were admitted. Respondent testified

in his own behalf.

FINDINGS OF FACT

At hearing Petitioner produced the laboratory reports and

other documentation related to the greyhounds " L ips A re S ealed"

and " R e d E yed F ever , " which on their fac e established the

following:

1 . At times relevant to this inquiry Respondent held P ari -

M utuel Wagering occupational license number 1102016 (1021) issued

by Petitioner.

2. On May 25, 2005, Respondent was the trainer of record

for a racing greyhound named "Lips Are Sealed , " whose

i dentifying tattoo number was 93C2231. On that date "Lips Are

Sealed" raced in the second race of the performance at Pen sacola

Greyhound Track, Inc. (T rack 150).

3. At the conclusion of the race a urine specimen was

collected of " Lips Are Sealed , " specimen 129287 , using

established procedures.

4. The urine sample 129287 was forwarded and processed in

accordance with established procedures , by the University of

Florida, College of Veterinary Medicine, Racing Laboratory.

5. On June 22, 2005, in a report prepared by the D irector

and the A ssociate D irector of the racing laboratory , it was

concluded "S ample 129287 has been analyzed by gas

chromatography/ mass spectrometry (GC/MS) and found to contain

B enzoylecgonine ( a metabolite of C ocaine ), and/or a derivative

thereof. Cocaine is a topical anesthetic and a Class I drug.

The concentration of B enzoylecgonine is 20.4 ng/ m L. "

6. On June 1, 2005, Respondent was the trainer of record

of racing greyhound "Red Eyed Fever." The identifying tattoo

for the greyhound was 32A11137. On that date "Red Eyed Fever"

raced in the fourth race of the performance at Pensacola

Greyhound Track, Inc. (Track 150). Following the race a urine

sample was collected from the racing greyhound , using

established procedures and assigned specimen number 12348.

7. After the urine sample was collected from "Red Eyed

Fever , " it was forwarded to the University of Florida, College

of Veterinary Medicine , R acing L aboratory for analysis.

8. The R acing L aborat ory at the University of Florida

performed an analysis consistent with established procedures , as

reflected in a report dated June 22, 2005, prepared by the

D irector and A ssociate D irector of the R acing L ab oratory. The

report concluded "S ample 12 348 has b een analyzed by gas

chromatography/ mass spectrometry (GC/MS) and found to contai n

Benzoylecgonine ( a metabolite of C ocaine), and/or a derivative

thereof. Cocaine is a topical anesthetic and a Class I drug.

The concentration of Benzoylecgonine is 22.3 ng/ mL. ”

9. In his hearing testimony Respondent stated several

times that he had never given his dogs, taken to mean racing

greyhounds, drugs of any kind. No other explanation was offered

concerning the circumstances related to " Lips Are Sealed " and

" Red Eyed Fever , " in which the y raced and were found to have

Benzoylecgonine ( a metabolite of C ocaine) and/or a derivative

thereof in their system s on the dates described.

CONCLUSIONS OF LAW

10. Respondent was at times relevant to the inquiry , the

holder of o ccupational license number 110201 6 (1021) issued by

Petitioner , allowing him to act as trainer for the racing

greyhounds " Lips Are Sealed " and " Red Eyed Fever . "

11. As such, according to Florida Administrative Code Rule

61D - 6.002(1), he was:

. . . respons ible for and . . . the absolute

insurer of the condition of the . . .

greyhounds he . . . enters to race.

12. As the responsible person , Respondent was held to

comply with Section 550.2415(1)(a), Florida Statutes (2004),

which states:

The racing of an a nimal with any drug,

medication, stimulant, depressant, hypnotic,

narcotic, local anesthetic, or drug - masking

agent is prohibited. . . .

13. Concerning the O rder of S ummary S uspension, Section

550.2415(3)(b), Florida Statutes (2004), states the follo wing:

The division, notwithstanding the provisions

of Chapter 120, may summarily suspend the

license of an occupational licensee

responsible under this section or division

rule for the condition of a race animal if

the division laboratory reports the prese nce

of an impermissible substance in the animal

or its blood, urine, saliva, or any other

bodily fluid, either before a race in which

the animal is entered or after a race the

animal has run.

14. After the Order of Summary Suspension was entered,

Respo ndent was presented the opportunity to contest the Order

under the terms set forth in Section 550.2415(3)(c), Florida

Statutes (2004), which states:

If an occupational licensee is summarily

suspended under this section, the division

shall offer the license e a prompt

postsuspension hearing within 72 hours, at

which the division shall produce the

laboratory report and documentation which,

on its face, establishes the responsibility

of the occupational licensee. Upon

production of the documentation, the

occup ational licensee has the burden of

proving his or her lack of responsibility.

15. The nature of the postsuspension hearing is further

explained in Section 550.2415(3)(d), Florida Statutes, (2004),

which states:

Any proceeding for administrative action

against a licensee or permittee, other than

a proceeding under paragraph (c), shall be

conducted in compliance with Chapter 120.

16. Although the postsuspension hearing is not conducted

in compliance with Chapter 120, it is a due process proceeding

enta iled by Section 550.2415(3)(c), Florida Statutes (2004).

17. In this case Petitioner , through laboratory reports

and other documentation, on the face of that material , has

established that Respondent is the occupation al licensee and

trainer of "Lips Are Sealed" and "Red Eyed Fever , " who raced.

B ased upon results of urine sample s that were examined in a

laboratory , the animals participated in a performance with

impermissible substances in their system s , namely

Benzoylecgonine (a metabolite of C ocaine ) an d/or a derivative

thereof , a topical anesthetic and a Class I drug. This was

prohibited by Section 550.2415(1)(a), Florida Statutes (2004).

Respondent was responsible for t he violations, according to

Florida Administrative Code Rule 61D - 6.002(1). Petiti oner

having produced the necessary documentation to sustain the

imposition of the Order of Summary Suspension, Respondent failed

to meet his burden of proving a lack of responsibility for the

findings within the laboratory reports pertaining to "Lips Are

S ealed" and "Red Eyed Fever . "

Upon Consideration , it is o rdered:

There is justification for the Order of Summary Suspension

at issue. It shall remain in effect pending disposition of the

Administrative Complaint associated with the Order of Summary

Suspension.

DONE AND ORDE RED this 2 6 th day of July , 200 5 , in

Tallahassee, Leon County, Florida.

S

___________________________________

CHARLES C. ADAMS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Park way

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 26 th day of July , 200 5 .

COPIES FURNISHED :

Stefan Thomas Hoffer, Esquire

Department of Business a nd

Professional Regulation

Division of Pari - Mutuel Wagering

1940 North Monroe Street

Tallahassee, Florida 32399 - 2202

Thomas M. Dudley, Sr.

Post Office Box 425

Lilli an, Alabama 36549

David J. Roberts , Director

Division of Pari - Mutuel Wagering

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399 - 2202

Leon Biegalski, General Counsel

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399 - 2202