06-003040PL Department Of Business And Professional Regulation, Division Of Pari-Mutuel Wagering vs. Chad E. Michaud Status: Closed Recommended Order on Monday, August 28, 2006.

Summary: The summary suspension of Respondent`s license is upheld due to the presence of a prohibited subtance in the dog`s system.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF PARI - MUTUEL )

WAGERING , )

)

Petitioner , )

)

vs. ) Case No. 06 - 3040PL

)

CHAD E. MICHAUD , )

)

Respondent . )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was conducted in this

case on August 22, 2006, in Orlando, Florida, before

Administrative Law Judge R. Bruce McKibben of the Division of

Administrative Hearings .

APPEARA NCES

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: Chad E. Michaud, pro se

27 Jackson Court

Casselberry, Florida 32707

STATEMENT OF THE ISSUE

The issue in this case is whether Respondent's li cense

should be summarily suspended in accordance with Subsection

550.2415(3)(b), Florida Statutes (2006).

PRELIMINARY STATEMENT

The Department of Business and Professional Regulation,

Division of Pari - Mutuel Wagering (the "Division") , issued an

Order o f S ummary Suspension (the "Order") dated July 28, 2006.

The Order summarily suspended the license of Chad E. Michaud

("Michaud"), who is a licensed greyhound trainer. The Order

also restricted Michaud's access to the grounds of all pari -

mutuel facilities wi thin the state. As required by law, the

Division provided Michaud - within 72 hours of issuance of the

Order - an opportunity to request a post - suspension hearing.

Michaud filed an Election of Rights form on or about August 18,

2006 , and a hearing was he ld in Orlando, Florida , on August 22 ,

2006 .

At the final hearing, the Division offered five exhibits

into evidence, each of which was accepted without objection.

Two witnesses testified on behalf of the Division: David M.

Tiffany, s cientific r esearch m an ager for the University of

Florida's Racing Laboratory , and Stephen Toner, an investigator

with the Division. Michaud testified on his own behalf and

offered no exhibits into evidence.

At the close of the evidentiary portion of the final

hearing, the part ies were allowed three days within which to

file their respective proposed recommended orders. No one

ordered a copy of the hearing transcript. On August 25, 2006,

both parties filed P roposed R ecommended O rders containing

proposed findings of fact and co nclusions of law. The parties'

proposals have been carefully considered during the preparation

of this Recommended Order.

FINDINGS OF FACT

1. The Division is the agency of the s tate responsible for

monitoring and regulating all aspects of pari - mutuel wag ering

activities. One of its responsibilities is the testing of

greyhound dogs for prohibited substances.

2. Michaud holds pari - mutuel wagering license n umber

16293 - 1021 as a greyhound trainer.

3. On June 23, 2006 , Michaud was the registered trainer o f

a greyhound known as "Ikes Trudy." Michaud was working at the

Sanford Orlando Kennel Club (also known and hereinafter referred

to as "CCC Racing"). Ikes Trudy ran in the seventh race at CCC

Racing on June 23, 2006, finishing fourth or fifth in that rac e.

4. Upon conclusion of the race, a urine sample was taken

from Ikes Trudy by a Division employee. The sample was taken in

an area of CCC Racing set aside for that purpose. The testing

site was not covered, i.e. , it was open to the elements.

However, there was no evidence of inclement weather at the time

the test sample was taken.

5. At the conclusion of each greyhound race, the winning

dog is always tested. It is normal for the Division to randomly

select another dog from the same race for testing a s well. In

this case, however, Ikes Trudy was specifically selected for

testing by the Division. No other dog was randomly sampled.

6. After the urine sample had been taken, a "Urine Sample

Card" was completed by the Division employee, signed by Michaud ,

and placed in a coin envelope. The urine sample card identifies

the greyhound as Ikes Trudy, the race track as CCC Racing, and

the trainer as Michaud.

7. The urine sample was then duly - processed and tested in

accordance with procedures established by the Division. The

test was performed at the University of Florida Racing Lab, a

certified and accredited testing facility. David M. Tiffany

supervised the testing procedure and signed the Report of

Positive Result on the test sample.

8. The test determ ined the presence of two metabolites of

cocaine in the urine sample: Benzoylecgonine ("BZE " ) and

Ecgonine Methyl Ester ("EME"). Cocaine is a Class 1 drug and is

a prohibited substance in racing greyhounds. The BZE

concentration in the sample was greater than 720 nanograms per

milliliter or 720 ng/mL. The EME concentration was 62.9 ng/mL.

The normal or average concentration of these metabolites, when

found in a greyhound, is between 10 and 50 ng/mL. The highest

level Mr. Tiffany had ever seen was appro ximately 120 ng/mL of

BZE and that was in this same animal, Ikes Trudy.

9. The question of how such a high concentration of these

metabolites would affect an animal was not resolved at the final

hearing. Michaud suggested such a level would kill the ani mal;

Mr. Tiffany could not conf irm that suggestion as factual.

10. Mr. Tiffany did not think the extremely high

concentration of metabolites in this test raised any questions

about the testing process or its results.

CONCLUSIONS OF LAW

11. The Division o f Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding pursuant to Section 120.569 and Subsection 120.57(1),

Florida Statutes (200 6 ).

12. The Division has the burden to establish by clear and

convincing ev idence the allegations contained in the Order.

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

13. The Division alleges Michaud violated Section

550.2415, Florida Statutes (2006), which states:

(1)(a) The racing of an animal with any

drug, medicat ion, 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

identities of the an imals being tested and

of their trainers and owners of record are

confidential and exempt from s. 119.07(1)

and s. 24(a), Art. I of the State

Constitution of 10 days after testing of all

samples collected on a particular day has

been completed and any posi tive test results

derived from such samples have been reported

to the director of the division or

administrative action has been commenced.

(b) It is a violation of this section for

a race - day specimen to contain a level of a

naturally occurring substa nce which exceeds

normal physiological concentrations. The

division may adopt rules that specify normal

physiological concentrations of naturally

occurring substances in the natural

untreated animal and rules that specify

acceptable levels of environmenta l

contaminants and trace levels of substances

in test samples.

(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 partici pating in the

race.

* * *

[3] (b) 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 presence 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 a fter

a race the animal has run.

(c) If an occupatio nal licensee is

summarily suspended under this section, the

division shall offer the licensee a prompt

postsuspension hearing within 72 hours, at

which the division shall produce the

laboratory report and documentation which,

on its face, establishes the r esponsibility

of the occupational licensee. Upon

production of the documentation, the

occupational licensee has the burden of

proving his or her lack of responsibility.

1 4 . The state has a valid objective in seeking to prevent

drugging o f race animals, both in the interest of the health of

the animals and the integrity of sport. See Simmons v. Division

of Pari - mutuel Wagering, Department of Business and Professional

Regulation , 407 So. 2d 269 (Fla. 3rd DCA 1981).

1 5 . It is uncontroverted that Michaud was the trainer of

Ikes Trudy on June 23, 2006 , and that the urine sample taken

from the dog on that date tested positive for metabolites of

cocaine. Under the plain language of the statue, the Division

has presented clear and convincing evidence to supp ort its

summary suspension of Michaud's license.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that a final order be entered by the Department

of Business and Professional Regulation, Division of Pari - Mutu el

Wagering upholding the s ummary s uspension of the license of

Chad E. Michaud.

DONE AND ENTERED this 28th day of August , 2006 , in

Tallahassee, Leon County, Florida.

S

R. BRUCE MCKIBBEN

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 (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 28t h day of August , 2006 .

COPIES FURNISHED :

Stefan Thomas Hoffer, Esquire

Department of Business and

Professional Regulation

Division of Pari - Mutuel Wagering

1940 North Monroe Street

Tallahassee, Florida 32399 - 2202

Chad E. Michaud

27 Jackson Court

Cass elberry, Florida 32707

Josefina Tamayo, General Counsel

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399 - 0792

David J. Roberts, Director

Division of Pari - Mutuel Wagering

Departme nt of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399 - 0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Rec ommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.