08-003689 Department Of Business And Professional Regulation, Division Of Pari-Mutuel Wagering vs. Jefferson County Kennel Club, Inc. Status: Closed Recommended Order on Friday, June 5, 2009.

Summary: The evidence demonstrated that Petitioner did not have a track vet present at weigh-in on multiple occasions due to deceased vet's illness (cancer). No prior discipline. On balance, the maximum fine is not reasonable. Recommend a $500 fine per violation.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF PARI-MUTUEL )

WAGERING, )

)

Petitioner, )

)

vs. ) Case No. 08-3689

)

JEFFERSON COUNTY KENNEL CLUB, INC., )

)

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to written notice, the above matter was heard

before the Division of Administrative Hearings by Administrative

Law Judge, Diane Cleavinger, on March 5, 2009, in Tallahassee,

Florida.

APPEARANCES

For Petitioner: Charles T. Collette, Esquire

Department of Business

and Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-2202

For Respondent: Steve Andris, President

Jefferson County Kennel Club, Inc.

Post Office Box 400

Monticello, Florida 32345

STATEMENT OF THE ISSUES

Whether Jefferson County Kennel Club, Inc.’s, pari-mutuel

wagering and operating license should be disciplined, and if so,

the penalty that should be imposed.

PRELIMINARY STATEMENT

On May 9, 2008, the Department of Business and Professional

Regulation (Petitioner) filed an Amended Administrative

Complaint against Respondent Jefferson County Kennel Club (JCKC

or Respondent). The Amended Administrative Complaint alleged

that Respondent, on 15 separate days, failed to have a

veterinarian on the premises before and after various dog races

held at the track. Respondent disputed the allegations of the

Amended Administrative Complaint and requested a formal

administrative hearing. The matter was forwarded to the

Division of Administrative Hearings.

At the hearing, Petitioner presented the testimony of

one witness and offered Petitioner’s Exhibit numbered P1 into

evidence. Respondent presented the testimony of one witness,

but did not offer any exhibits into evidence.

After the hearing, both parties requested time to submit

Proposed Recommended Orders. However, neither party submitted a

proposed order.

FINDINGS OF FACT

1. JCKC holds a pari-mutuel wagering license, number

0000146-1000, and a pari-mutuel operating dates license numbered

0000146-1001. Under those licenses, Respondent operates a dog

track and poker room at its race track facility in Jefferson

County, Florida.

2. On certain dates, Respondent offers matinee and evening

dog races. For each race, Respondent is required to have a

licensed veterinarian on the premises before, during, and after

the race. The purpose of the veterinarian is to ensure the

racing dogs are healthy and fit enough to race and to provide

care for any racing dog injured during a race.

3. In general, the veterinarian examines or observes all

dogs during the dogs’ weigh-in and after the dog is placed in

the lock-out kennel before and after a race. The lock-out

kennel or Jenny Pit is a holding area where each dog is held in

a separate cage. Access to the area is limited.

4. On September 17 and 19, 2005, February 6, 18, 24, 25,

March 4, 10, 11, 18, 30, and April 1, 8, 15, and 22, 2006,

Respondent conducted races at its track.

5. During 2005 and 2006, Dr. David Jordan, now deceased,

was the licensed veterinarian at Respondent’s track. At the

time, Dr. Jordan was dying from cancer, and with little notice,

sometimes could not be present on race days due to his illness.

On those days, and because of the limited number of qualified

veterinarians in the Jefferson County area, attempts to locate

another veterinarian were not successful.

6. As a consequence, no track veterinarian was present for

the matinee races held on September 17, 2005. Similarly, no

track veterinarian was present for the evening races held on

September 19, 2005, February 6, 2006, February 18, 2006,

February 24, 2006, February 25, 2006, March 4, 2006, March 10,

2006, March 11, 2006, March 18, 2006, April 1, 2006, April 8,

2006, April 15, 2006, and April 22, 2006.

7. Additionally, no track veterinarian was present for the

weighing in before the greyhounds entered the lock-out kennel

prior to the evening races held on March 30, 2006. However, a

veterinarian was present to observe the race dogs during and

after the evening races on March 30, 2006.

8. Respondent does not dispute that a veterinarian was not

present on the days listed above and does not dispute that such

failure was a violation of the Division’s rules. Respondent

does dispute the maximum amount of the fine sought by

Petitioner. Clearly, Respondent’s license is subject to

discipline under Chapter 550, Florida Statutes (2008).

9. The law in effect from September 2005 though April 2006

allowed JCKC to operate its cardroom only on the days that it

was conducting live greyhound racing.

10. The revenues from JCKC’s cardroom operations for the

dates at issue are as follows:

D A T E G R O S S RECEIPTS T O U R N A M E N T TOTAL GROSS TAX DUE

GROSS RECEIPTS STATE

RECEIPTS

09/17/05 $4,558.00 $1,620.00 $6,178.00 $617.80

11/19/05 4,220.00 0.00 4,420.00 422.00

02/04/06 6,852.00 0.00 6,852.00 685.20

02/18/06 5,452.00 0.00 5,452.00 545.20

02/24/06 3,862.00 0.00 3,862.00 386.20

02/25/06 5,154.00 0.00 5,154.00 515.40

03/04/06 5,404.00 0.00 5,404.00 540.40

03/10/06 2,971.00 0.00 2,971.00 297.10

03/11/06 3,949.00 0.00 3,949.00 394.90

03/18/06 4,254.00 918.00 5,172.00 517.20

03/30/06 898.00 1,600.00 2,498.00 249.80

04/01/06 3,494.00 1,224.00 4,718.00 471.80

04/08/06 3,782.00 1,440.00 5,222.00 522.20

04/15/06 4,204.00 1,386.00 5,590.00 559.00

04/22/06 3,235.00 1,440.00 4,675.00 467.50

T O T A L S $ 6 2 , 2 8 9 . 0 0 $ 9 , 6 2 8 . 0 0 $ 7 1 , 9 1 7 . 0 0 $ 7 , 1 9 1 . 7 0

11. Even with this revenue, the track operates at a loss.

Moreover, this is the only disciplinary action against

Respondent. On the other hand, Respondent did have multiple

times when a veterinarian was not present to observe the dogs at

the track. However, the veterinarian’s absences were

unpredictable and not within Respondent’s control. Given these

factors, it is unreasonable to fine Respondent the maximum

amount accorded under Chapter 550, Florida Statutes (2008). In

this case, a reasonable fine would be $500 for each day the

track veterinarian was not present as required.

CONCLUSIONS OF LAW

12. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding. §§ 760.11(6), 120.569, and 120.57, Fla. Stat.

(2008)

13. Florida Administrative Code Rule 61D-6.009 requires a

licensed veterinarian to be present before and after a race.

The Rule states:

Each racing animal permitholder shall employ

a veterinarian (the track or permitholder

veterinarian) who is licensed by and in good

standing with the Florida State Board of

Veterinary Medicine. It is the duty of the

general manager to ensure that the

requirements of the rules pertaining to the

track veterinarian are strictly complied

with.

(a) Every racing animal entered to race

shall be given a pre-race examination on the

day of the race for which entered to

determine the entry’s fitness to race. The

pre-race examination shall be made by the

track veterinarian.

* * *

2. Racing greyhounds shall be examined by

the track veterinarian at the first

weighing-in time, before entry into the

lock-out kennel (Jenny Pit).

(b) The track veterinarian shall observe

the condition of all racing animals

immediately prior to, during, and after the

race, time permitting. Any racing animal

which has been entered to race that the

track veterinarian or division veterinarian

considers to be unsound for racing shall be

promptly reported to the stewards or judges

and said animal shall be scratched.

14. Petitioner has the burden of proof in this proceeding

to establish by clear and convincing evidencing that Respondent

committed the acts alleged in the Administrative Complaint and

the reasonableness of the proposed penalty. Ferris v.

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

15. In this case, Petitioner established by clear and

convincing evidence that there were 15 days in late 2005 and

early 2006 when Respondent did not have a veterinarian present

at its greyhound track in Jefferson County, Florida. Such

failure constitutes 15 violations of Florida Administrative Code

Rule 61D-6.009(2)(a)2.

16. Sections 550.0251(10) and 550.054(9)(b), Florida

Statutes (2008), set forth the range of penalties Petitioner may

impose for violations of Chapter 550, Florida Statutes (2008).

Section 550.0251(10), Florida Statutes (2008), states:

The division may impose an administrative

fine for a violation under this chapter of

not more than $1,000 for each count or

separate offense, except as otherwise

provided in this chapter, and may suspend or

revoke a permit, a pari-mutuel license, or

an occupational license for a violation

under this chapter. All fines imposed and

collected under this subsection must be

deposited with the Chief Financial Officer

to the credit of the General Revenue Fund.

Section 550.054(9)(b), Florida Statutes (2008), states:

The division may revoke or suspend any

permit or license under this chapter upon

the willful violation by the permitholder or

licensee of any provision of this chapter or

of any rule adopted under this chapter. In

lieu of suspending or revoking a permit or

license, the division may impose a civil

penalty against the permitholder or licensee

for a violation of this chapter or any rule

adopted by the division. The penalty so

imposed may not exceed $1,000 for each count

or separate offense. All penalties imposed

and collected must be deposited with the

Chief Financial Officer to the credit of the

General Revenue Fund.

17. As indicated, Respondent has not been the subject of

disciplinary action in the past and the veterinarian’s absence

from the track on race days was not under Respondent’s control.

Nevertheless, there were 15 days that Respondent did not have a

veterinarian at its greyhound track. An administrative penalty

of $7500 ($500 for each day) is appropriate.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is RECOMMENDED that Petitioner enter a final order

finding Respondent guilty of violating Florida Administrative

Code Rule 61D-6.009(2), and imposing a $7500 fine.

DONE AND ENTERED this 5th day of June, 2009, in

Tallahassee, Leon County, Florida.

S

DIANE CLEAVINGER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 5th day of June, 2009.

COPIES FURNISHED :

Charles T. “Chip” Collette, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-2202

Steve Andris

Post Office Box 400

Monticello, Florida 32345

Tim Vaccaro, Director

Division of Pari-Mutuel Wagering

Department of Business

and Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399-0792

Ned Luczynski, General Counsel

Department 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 Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.