06-000737PL Department Of Business And Professional Regulation, Division Of Pari-Mutuel Wagering vs. Thomas M. Dudley Status: Closed Recommended Order on Tuesday, June 27, 2006.

Summary: Respondent was the trainer for greyhounds that raced under the influence of drugs.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS )

AND PROFESSIONAL REGULATION, )

DIVISION OF PARI - MUTUEL )

WAGERING, )

)

Petitioner, )

)

vs. ) Case No. 0 6 - 0737P L

)

THOMAS M. DUDLEY, )

)

Respondent. )

)

RECOMMENDED ORDER

Notice was provided and on May 4, 2006, a formal hearing

was conducted in this case. Authority for conducting the

hearing is set forth in Sections 120.569 and 120.57(1), Florida

Statutes (2005). The hear ing location was the O ffice of the

Division of Administrative Hearings, the DeSoto Building, 1230

Apalachee Parkway, Tallahassee, Florida. The hearing commenced

at 10:00 a.m. The hearing was held before Charles C. Adams,

Administrative Law Judge.

APPEAR ANCES

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: No appeara nce

STATEMENT OF THE ISSUE

Should Petitioner impose discipline against Respondent's

Pari - Mutuel Wagering Occupational License , and other relief for

alleged vi olation of Section 550.2415(1)(a ), Florida Statutes

(2005)?

PRELIMINARY STATEMENT

On Oc tober 6, 2005, Petitioner completed an Amended

Administrative Complaint against Respondent, Case Nos.

2005033377, 2005033379, 2005036766 and 2005038762. Respondent

was provided several options in addressing the A mended

A dministrative C omplaint. He chose to dispute the material

facts in the A mended A dministrative C omplaint, by requesting a

hearing pursuant to Section 120.57 (1), Florida Statutes (2005).

The material dispute of fact s concern allegations that

Respondent was the trainer of record of four raci ng greyhounds

who participated in meets at the Pensacola Greyhound Track with

a prohibited substance in their bodies, namely cocaine and/or

its metabolite benzoylecgonine in violation of Section

550.2415(1)(c), Florida Statutes (2005). The A mended

A dminis trative C omplaint also refers to Florida Administrative

Code Rule 61D - 6.002(1) concerning responsibilities of the

trainer in relation to the condition of the racing greyhounds

entered in a race. Petitioner also seeks return of the purses

paid in the races where the greyhounds performed and won a cas h

p rize.

Petitioner forwarded the case to the Division of

Administrative Hearing s (DOAH) for Robert S. Cohen, Chief Judge

to assign an Administrative Law Judge to conduct necessary

proceeding s . On Febru ary 28, 2006, the referral was received by

DOAH. The case was assigned to the undersigned as DOAH Case No.

06 - 0737PL. The case was noticed to be heard on the

aforementioned date.

Prior to the hearing Petitioner instituted discovery to

include the re quest for admission s by Respondent pursuant to

Rule 1.370, Florida Rules of Civil Procedure. Petitioner sought

to shorten the time for responses to the discovery. O n

April 18, 2006, an o rder was entered requiring Respondent to

provide answers and respons es to the pending discovery no later

than April 28, 2006. Respondent did not comply with that o rder.

Under the circumstances Respondent was deemed to have admitted

those matters requested for admission in accordance with Rule

1.370, Florida Rules of Civi l Procedure. This allow s the

matters admitted to form the basis for fact - finding in this

Recommended Order.

At hearing Ernest James Barnes, Jr., and Margaret Wilding

testified for Petitioner. Petitioner's Exhibits numbered 1

through 16 were admitted .

On June 5, 2006, a hearing Transcript was filed.

On June 15, 2006 , Petitioner filed a proposed recommended

order , which was considered in preparing the Recommended Order .

FINDINGS OF FACT

1. Between May 24, 2005 and June 18, 2005, Respond ent held

a P ari - M utuel W agering O ccupational L icense, number 1102 016 -

1021, issued by Petitioner .

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

of a racing greyhound name d "Lip s Are Sealed."

3. On May 25, 2005, "Lips Are Sealed" was entere d, and

finished first (1st), in the second (2nd) race of the

performance at Pensacola Greyhound Track.

4. Immediately following the second (2nd) race of the

performance at Pensacola Greyhound Track on May 25, 2005, urine

sample number 129287 was collecte d from "Lips Are Sealed."

5. The University of Florida Racing Laboratory tested

urine sample number 129287 and found it to contain

Benzoylecgonine (a metabolite of Cocaine), and/or a derivative

thereof.

6. Benzoylecgonine (a metabolite of Cocaine), and /or a

derivative thereof, is an impermissible substance, that was

carried in the body of "Lips Are Sealed" while participating in

the second (2nd) race of the performance at Pensacola Greyhound

Track on May 25, 2005.

7. On June 1, 2005, Respondent was th e trainer of record

of a racing greyhound named "Red Eyed Fever."

8. On June 1, 2005, "Red Eyed Fever" was entered, and

finished first (1st), in the fourth (4th) race of the

performance at Pensacola Greyhound Track.

9. Immediately following the fourth (4th) race of the

performance at Pensacola Greyhound Track on June 1, 2005, urine

sample number 129348 was collected from "Red Eyed Fever."

10. The University of Florida Racing Laboratory tested

urine sample number 129348 and found it to contain

Benzoyle cgonine (a metabolite of Cocaine), and/or a derivative

thereof.

11. Benzoylec g onine (a metabolite of Cocaine), and/or a

derivative thereof, is an impermissible substance, that was

carried in the body of "Red Eyed Fever" while participating in

the fourth (4th) race of the performance at Pensacola Greyhound

Track on June 1, 2005.

12. On June 16, 2005, Respondent was the trainer of record

of a racing greyhound named "Stubborn Kind."

13. On June 16, 2005, "Stubborn Kind" was entered, and

finished first (1 st), in the first (1st) race of the performance

at Pensacola Greyhound Track.

14. Immediately after the first (1st) face of the

performance at Pensacola Greyhound Track on June 16, 2005, urine

sample number 129469 was collected from "Stubborn Kind."

15 . The University of Florida Racing Laboratory tested

urine sample number 129469 and found it to contain

Benzoylecgonine (a metabolite of Cocaine), and/or a derivative

thereof.

16 . Benzoylecgonine (a metabolite of Cocaine), and/or a

derivative thereof, is an impermissible substance, that was

carried in the body of "Stubborn Kind" while participating in

the first (1st) race of the performance at Pensacola Greyhound

Track on June 16, 2005.

1 7 . On June 17, 2005, Respondent was the trainer of record

of a raci ng greyhound named "Drinktil Hescute."

18 . On June 17, 2005, "Drinktil Hescute" was entered, and

finished first (1st), in the fifth (5th) race of the performance

at Pensacola Greyhound Track.

19 . Immediately following the fifth (5th) race of the

perfor mance at Pensacola Greyhound track on June 17, 2005, urine

sample number 129479 was collected from "Drinktil Hescute."

20. The University of Florida Racing Laboratory tested

urine sample number 129479 and found it to contain

Benzoylecgonine (a metabolite of Cocaine), and/or a derivative

thereof.

21 . Benzoylecgonine (a metabolite of Cocaine), and/or a

derivative thereof, is an impermissible substance, that was

carried in the body of "Drinktill Hescut e" while participating

in the fifth (5th) race of the pe rformance at Pensacola

Greyhound Track on June 17, 2005.

CONCLUSIONS OF LAW

22 . D O AH h as jurisdiction over the parties and the subject

matter of this proceeding in accordance with Sections 120.569 ,

120.57(1), and 550.2415(3)(d), Florida Statutes (2005).

23. This is a disciplinary case. T herefore , Petitioner

has the burden of proving the allegations of the A mended

A dministrative C omplaint by clear and convincing evidence. See

§ 120.57(1)(j), Fla. Stat. (2005); see also Department of

Banking and Finance Division of Secur i ties and Investor

Pro tection v. Osborne Stern and Co. , 670 So. 2d 932 (Fla. 1996);

Ferris v. Turlington , 510 So. 2d 292 (Fla. 1987); and Pou v.

Department of Insurance and Treasur er , 707 So. 2d 941 (Fla. 3rd

DCA 1998).

2 4 . The meaning of clear and convincing evidence is

explained in the case In Re: Davey , 645 So. 2d 398 (Fla. 1995),

quoting with approval from Slomowitz v. Walker , 429 So. 2d 797

(Fla. 4th DCA 1983).

2 5 . There are four separate counts to the A mended

A dministrative C o mplaint involving the racing greyhounds named

"Lips Are Sealed," "Red Eyed Fever," Stubborn Kind," and

"Drinktil Hescute ." All the animals were alleged to have raced

in performances at Pensacola Greyhound Track with Cocaine and/or

its metabolite Benzoylec gonine in their bodies, a prohibited

substance. The A mended A dministrative C omplaint contemplates

that Respondent will be held accountable as the trainer of

record, as an absolute insurer of the condition of the racing

greyhounds that were entered in the races.

26 . Clear and convincing evidence proved that the

greyh o unds named were racing greyhounds who performed at

Pensacola Greyhound Track on the dates at issue , when Respondent

served as the trainer of record and that during the performance s

they had C ocaine in their systems , as evidenced in post - race

urine samples containing Benzoylecgonine (a metabolite of

Cocaine). The drug present was a prohibited substance.

27 . To support this conclusion, Respondent holds a P ari -

Mutue l W agering O ccupational lice nse pursuant to Section

550.105(2)(a)2., Florida Statutes (2005). He holds the license

as a trainer of the racing greyhounds that have been described.

§ 550.002(29), Fla. Stat. (2005). The racing greyhounds

participated in a "performance" at various tim es held at

Pensacola Greyhound Track. § 550.002(25), Fla. Stat. (2005).

2 8 . Petitioner has taken action against Respondent under

authority set forth in Section 550.0251, Florida Statutes

(2005), entitling it to regulate Respondent's conduct in

associati on with the racing greyhounds who performed at

Pensacola Greyhound Track.

2 9 . It was not permissible for the racing greyhounds to

perform under the influence of Cocaine. This conduct is

prohibited under Section 550.2415(1)(a), Florida Statutes

(2005), w hich states:

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. . . .

30 . Cocaine is a schedule II controlled substance referred

to in Section 893.03(2)(a)4., Florida Statutes (2005).

31 . Cocaine is a prohibited substance when found in a race

day specimen, such as was the c a se from the list ed racing

greyhounds on the date s in question . F inding the prohibited

substance in the racing greyhounds constituted prima facie

evidence that the substance had been administer ed and was

carried in their bodies while participating in the races. No

eviden ce was offered to the contrary. § 550.2415(1)(c), Fla.

Stat. (2005).

32 . Respondent is subject to this administrative action as

trainer for the racing greyhounds under authority set forth in

Section 550.2415(2), Florida Statutes (2005), which states:

Ad ministrative 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.

33 . The rule w hich makes Respondent responsible for the

circumstances where the racing greyhounds performed with Cocaine

in their bodies is found at Florida Administrative Code Rule

61D - 6.002(1) , which states:

The trainer of record shall be responsible

for and be the ab solute insurer of the

condition of the . . . racing greyhounds, he

. . . enters to raceainers . . . are

presumed to know the rules of the division

. . . .

3 4 . Nothing in the rec ord indicates a n y lack of knowledge

by Respondent, that would ove rcome his responsibility for the

racing greyhounds performing with C ocaine in their systems.

35. Respondent has violated Section 550.2415(1)(a),

Florida Statutes (2005), and is subject to punishment and

remedial action in accordance with Section 55 0.2415(3) (a) ,

Florida Statutes (2005), which states:

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 i n an

amount not exceeding $5,000; require the

full or partial return of the pur s e;

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

prohibi ts a prosecution for criminal acts

committed.

3 6 . U pon these facts, Respondent's occupational license as

a trainer should be revoked and a $5,000.00 fine imposed. In

addition, the r ace purses should be returned. See Hyman v.

State, Department of B usiness Regulation, Division of Pari -

Mutuel Wagering , 431 So. 2d 603 (Fla. 3rd DCA 1983).

RECOMMENDATION

Upon c onsideration of the facts found and the conclusions

of law reached , it is

RECOMMENDED:

That a final order be entered revoking the occupati onal

license held by Respondent , imposing a $5,000.00 fine and

requiring the return of the race purses .

DONE AND ENTERED this 27th day of Ju ne , 200 6 , in

Tallahassee, Leon County, Florida.

S

___________________________________

CHARLES C. ADAMS

Admi nistrative Law Judge

Division 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 Ad ministrative Hearings

this 27th day of Ju ne , 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.

327 Northeast 434 Street

Old Town, Florida 32680

David J. Roberts , Director

Division of Pari - Mutuel Wagering

Department of Business and

Professional Regulation

1940 North Monroe St reet

Tallahassee, Florida 32399 - 2202

Josefina Tamayo , General Counsel

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399 - 2202

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to s ubmit 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.