11-001578PL Department Of Business And Professional Regulation, Division Of Pari-Mutuel Wagering vs. Richard Alves Status: Closed Recommended Order on Monday, September 19, 2011.

Summary: Respondents violated section 550.2415. Although Respondents were not able to supervise animals pre-race, the absolute insurer rule mandates finding violations of the statute.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF PARI - MUTUEL )

WAGERING , )

)

Petitioner , )

)

vs. ) Case Nos. 11 - 1578PL

) 11 - 1579PL

RICHARD ALVES AND CASEY ALVES, )

)

Respondents . )

)

RECOMMENDED ORDER

On July 22, 2011, a duly - noticed hea ring was held by video

teleconferencing with sites in Daytona Beach and Tallahassee ,

Florida , before Lisa Shearer Nelson , an Administrative Law Judge

assigned by the Division of Administrative Hearings .

APPEARANCES

For Petitioner: David N. Perry, Esquire

Assistant General Counsel

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399 - 2202

For Respondent: Mitchell Wrenn, Esquire

Huseman, Johns & Wrenn

958 South Ridgewood Aven ue

Daytona Beach, Florida 32114

STATEMENT OF THE ISSUE

Whether Respondents have violated the pro visions of section

550.2415(1)(a ), Florida Statutes (2010), and if so, what penalty

should be imposed?

PRELIMINARY STATEMENT

On January 18, 2010, Petitioner, the Department of Business

and Professional Regulation, Division of Pari - Mutuel Wagering

(Petitioner or the Department), filed Administrative Complaints

against Respondents Richard Alves (DOAH Case No. 11 - 1578 PL ) and

Casey Alves (DOAH Case No. 11 - 1579 PL ), alleging th at with respect

to the dog s named in the Administrative Complaints, Respondents

ha d violated section 550.2415(1)(a ). Both Respondents filed an

Election of Rights form disputing the allegations in the

Administrative Complaints and re questing a hearing purs uant to

s ection 120.57(1), Florida Statutes (2010). On March 29, 2011,

the cases were transferred to the Division of Administrative

Hearings for assignment of an administrative law judge.

On April 12, 2011, the cases were consolida ted for the

purposes of conducting a hearing, scheduled for May 9, 2011. At

Petitioner's request, the hearing was rescheduled without

objection for July 22, 2011, and proceeded as scheduled.

At hearing, Petitioner presented the testimony of James

Decker, Margaret Wilding, and Bryan Wall, and Petitioner's

Exhibits A through BB were admitted into evidence. Respondent s

submitted no exhibits but presented the testimony of Chris

Miller, Lance LaFreniere, Casey Alves, and Richard Alves .

The transcript was filed on August 5, 2011, and both parties

timely filed Proposed Recommended Orders which have been

carefully considered in the preparation of this Recommended

Order.

FINDINGS OF FACT

1. The Division of Pari - Mutual Wagering is the state agency

charged with the regulation of pari - mutuel wagering pursuant to

section 20.165 and c hapter 550, Florida Statutes.

2. At all times material to the allegations in the

Administrative Complaints, Respon dent Richard Alves held a pari -

mutuel wagering greyhound trainer license, number 1053205 - 1021,

issued by Petitioner.

3. At all times material to the allegations in the

Administrative Complaints, Respondent Casey Alves was also

licensed as a greyhound trai ner by Petitioner, having been issued

license number 2015868 - 1021.

4. At all times material hereto, Daytona Beach Kennel Club

(DBKC) has be en a licensed Florida pari - mutue l facility

authorized to conduct pari - mutuel wagering. The Respondents

trained grey hounds that were entered to race at DBKC.

5. Cocaine is a local anesthetic and a Class One drug under

the Uniform Classification Guidelines for Foreign Substances, as

promulgated by the Association of Racing Commissioners, Inc. It

is a pro hibited medicat ion pursuant to s ection 550.2415(10(a).

6. At all times material hereto, Respondent Richard Alves

was the trainer of record for greyhounds named "Flying Car,"

"Goldie's Trey," and "Iruska Direct."

7. At all times material hereto, Respondent Casey Alv es was

the trainer of record for greyhounds named "Kelsos Jalopy," "Wild

Mia," "Mani Appeal," and "Fuzzy's Big Shot."

Flying Car

8. On April 27, 2010, Flying Car was entered in the third

race at DBKC.

9. Flying Car finished sixth in the third race that d ay.

10. Flying Car was subject to pre - race testing, and prior

to the start of the race, urine sample 610687 was collected from

Flying Car. The urine sample was processed in accordance with

established procedures and forwarded to the lab for analysis.

11. Richard Alves was not present in the testing enclosure

when the urine sample was taken, because according to John

Decker, DBPR Investigations Supervisor, trainers are not

permitted to be on the track when gr e yhounds are there for the

race. T rainers a re required to drop the animals off at the track

approximately one and a half hours prior to the racing schedule

and leave them there until after the dog's race is over.

Depending on when the dog races, the trainer has no contact with

the racing animal fr om two to approximately five hours.

12. Richard Alves did not sign the sample collection form

for Flying Car, because he was not present when the collection

was taken.

13. The University of Florida Racing Laboratory tested

urine sample number 610687 and found that it contained

Benzoylecgonine, a metabolite of cocaine.

Goldie's Trey

14. Respondent Richard Alves was the trainer of record for

racing greyhound Goldie's Trey on August 5, 2010.

15. On August 5, 2010, Goldie's Trey was entered in the

tenth rac e at DBKC. Goldie's Trey finished sixth in the tenth

race.

16. Goldie's Trey was subject to pre - race testing, and

prior to the start of the race, urine sample 603139 was collected

from Goldie's Trey. The urine sample was processed in accordance

with est ablished procedures and forwarded to the lab for

analysis .

17. Richard Alves was not present in the testing enclosure

when the urine sample was taken, because trainers of greyhounds

are not permitted to be on the track at that time .

18. Richard Alves d id not sign the sample collection form

for Goldie's Trey, because he was not present when the collection

was taken.

19. The University of Florida Racing Laboratory tested

urine sample 60319 and found that it contained cocaine, plus

Benzoylecgonine and Ecg onine Methyl Ester, metabolites of

Cocaine.

Iruska Direct

20. Respondent Richard Alves was the trainer of record for

the greyhound, Iruska Direct.

21. On November 26, 2010, Iruska Direct was entered in the

15th race at DBKC. Iruska Direct finished si xth in the 15 th

race.

22. Iruska Direct was subject to pre - race testing, and

prior to the start of the race, urine sample 662039 was collected

from Iruska Direct and processed in accordance with established

procedures and forwarded to the lab for analysis .

23. Richard Alves was not present in the testing enclosure

when the urine sample was taken, because trainers for greyhounds

are not permitted to be on the track when the animals are there

for the race.

24. Richard Alves did not sign the sample collec tion form

for Iruska Direct, because he was not present when the collection

was taken.

25. The University of Florida Racing Laboratory tested

urine sample number 662039 and found that it contained

Benzoylecgonine, a metabolite of cocaine.

Kelsos Jalopy

26 . Respondent Casey Alves was the trainer of record for

the racing greyhound Kel s os Jalopy.

27. On November 10, 2010, Kel s os Jalopy was entered in the

seventh race at DBCK. The dog finished second in the seventh

race.

28. Kelsos Jalopy was subject to pre - race testing, and

prior to the start of the race, urine sample 661859 was collected

from Kelsos Jalopy and processed in accordance with the

established procedures and forwarded to the lab for analysis.

29. Casey Alves was not present in the testing en closure

when the urine sample was taken, because trainers for greyhounds

are not permitted to be on the track when the animals are there

for the race.

30. Casey Alves did not sign the sample collection form for

Kelsos Jalopy, because he was not present when the collection was

taken.

31. The University of Florida Racing Laboratory tested

urine sample number 661859 and found that it contained

Benzoylecgonine, a metabolite of cocaine.

Mani Appeal

32. Respondent Casey Alves was the trainer of record for

the racing greyhound Mani Appeal on November 6, 2010.

33. On November 6, 2010, Mani Appeal was entered in the

second race at DBKC. Mani Appeal finished fourth.

34. Mani Appeal was subject to pre - rac e testing, and prior

to the start of the race, urine sample 661795 was collected from

Mani Appeal and processed in accordance with established

procedures and forwarded to the lab for analysis.

35. Casey Alves was not present in the testing enclosure

when the urine sample was taken, because greyhound s' trainers are

not permitted to be on the track at that time .

36 . Casey Alves did not sign the sample collection form for

Mani Appeal , because he was not present when the collection was

taken.

37. The Univers ity of Florida Racing Laboratory tested

urine sa m ple number 661795 and found that it contained cocaine,

and Benzoylecgonine and Ecgonine Methyl Ester, metabolites for

cocaine.

Wild Mia

38. Respondent Casey Alves was the trainer of record for

the racing gr eyhound Wild Mia on November 5, 2010. On that day,

Wild Mia was entered in the sixth race at DBKC. Wild Mia

finished second in the sixth race.

39. Prior to the start of the race, urine sample 661786 was

collected from Wild Mia as part of pre - race testin g, and

processed in accordance with established procedures and forwarded

to the lab for analysis.

40. Casey Alves was not present in the testing enclosure

when the urin e sample was taken, because greyhound s' trainers are

not permitted to be on the track a t that time.

41. Casey Alves did not sign the sample collection form for

Wild Mia, because he was not present when the collection was

taken.

42. The University of Florida Racing Laboratory tested

urine sample number 661786 and found that it contained coc aine,

and Benzoylecgonine and Ecgonine Methyl Ester, metabolites for

cocaine.

Fuzzy's Big Shot

4 3 . Respondent Casey Alves was the trainer of record for

the racing greyhound Fuzzy's Big Shot on November 17, 2010. On

that day, Fuzzy's Big Shot was entered in the fifth race at DBKC

and finished first.

44 . Fuzzy's Big Shot was subject to pre - race testing.

Prior to the start of the race, urine sample 661943 was collected

from Fuzzy's Big Shot in accordance with established procedures

and forwarded to the lab for analysis.

45 . As was the case with the other racing greyhounds, Casey

Alves was not present in the testing enclosure when the urine

sample was taken, because greyhound trainers are not permitted to

be on the track at that time.

46 . Casey Alves did n ot sign the sample collection form for

Fuzzy's Big Shot, because he was not present when the collection

was taken.

47 . The University of Florida Racing Laboratory tested

urine sample 661943 and found that it contained Benzoylecgonine,

a metabolite of coca ine.

48 . Respondents steadfastly deny giving cocaine to any of

the animals discussed above. Both Casey and Richard Alves'

kennels were searched in November of 2010. No drugs or illegal

substances were found in the kennels.

4 9 . John Dekker, Investigations Supervisor for the

Department for the Department, testified that the procedures were

different for pre - race and post - race testing.

CONCLUSIONS OF LAW

50 . The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties to this

action in accordance with s ections 120.569 and 120.57(1).

5 1 . The Department is seeking revocation of Respondents'

occupational licenses as trai ners of racing greyhounds. Because

this is a penal proceeding, Petitioner is required to prove the

allegations against Respondents by clear and convincing evidence.

Dep't of Banking and Fin. v. Osborne Stern & Co. , 670 So. 2d 932

(Fla. 1996); Ferris v. T urlington , 510 So. 2d 292 (Fla. 1987).

52 . As stated by the Florida Supreme Court:

Clear and convincing evidence requires that

the evidence must be found to be credible;

the facts to which the witnesses testify must

be distinctly remembered; the testimon y must

be precise and lacking in confusion as to the

facts in issue. The evidence must be of such

a weight that it produces in the mind of the

trier of fact a firm belief or conviction,

without hesitancy, as to the truth of the

allegations sought to be es tablished.

In re Henson , 913 So. 2d 579, 590 (Fla. 2005), quoting Slomowitz

v. Walker , 429 So. 2d 797, 800 (Fla. 4th DCA 1983).

53 . Respondents were charged with violating section

550.2415, which states in pertinent part:

(1)(a ) 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, medicat ion, 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 the

identities of the animals being tested and of

their trainers and owners of record are

confidential and exempt from s. 119.07 ( 1)

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

Constitution for 10 days after testing of all

samples collected on a particular day has

been completed and any positive test results

derived from such samples have been rep orted

to the director of the division or

administrative action has been commenced.

* * *

(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 participating in the race.

54 . Petitioner relies on the "absolute insurer rule,"

Florida Administrative Code Rule 61D - 6.002(a) for attributing the

administration of a prohibited substance to Respondents as

trainer s of record for the animals. Conversely, Respondents

argue that the Department has not complied with the Department's

rules for taking pre - race specimens, in that while rule 61D - 6.005

requires the animal's trainer of record, owner or designee to be

presen t, in practice trainers are not permitted in the testing

enclosure when the specimens are taken.

55 . Rule 61D - 6.002(1) provides:

(1) The trainer of record shall be

responsible for and be the absolute insurer

of the condition of the horses or racing

grey hounds, he/she enters to raceainers,

kennel owners and operators are presumed to

know the rules of the division. . . .

56 . Known as the absolute ins urer rule, rule 61D - 6.002(1)

makes a trainer strictly liable for the administration of

impermissible drugs to a racing animal. This firmly entrenched

rule of the Division of Pari - Mutuel Wagering has survived several

challenges to its validity over the years. See , e.g. , Hennessey

v. Dep't of Bus. & Prof'l Reg. , 818 So. 2d 697 (Fla. 1st DCA

2002); Solimena v. Dep't of Bus. Reg. , 40 2 So. 2d 1240 (Fla. 3d

DCA 1981); Div. of Pari - Mutuel Wagering, Dep't of Bus. Reg. v.

Caple , 362 So. 2d 1350 (Fla. 1978). In the most recent challenge

to the absolute insurer rule, the First District relied in part

on the findings of the administrative la w judge regarding the

regulatory scheme for pari - mutuel facilities. The Court quoted

the following findings from the underlying final order:

28. The trainer is singularly the best

individual to hold accountable for the

condition of a horse. The trainer is either

going to be with the horse at all time s or

one of his or her employees or contractors is

going to be with the horse at all times,

whether the horse is racing on an individual

day or is merely stabled at the track . A

trainer of racing horses is r esponsible for

the animals' athletic conditioning. A

trainer is also responsible for providing for

the regular care of the horses he trains,

including feeding and seeing to the medical

needs of the horses. All persons who handle

an animal prior to the ru nning of a race are

either employees of the track or Department

or are employed by or in a professional

relationship with the trainer. At no time

prior to a race is a trainer or his employer

prohibited from seeing to the security of the

horse in the paddo ck . While there are other

persons who come in contact with the horse

prior to a race, the trainer due to his

responsibility for the care and supervision

of the animal stands in the best overall

position to prevent improper medication of

the horse.

29. T here is no practical alternative to

holding the trainer of record responsible for

the condition of the animals he enters to

race. . . . The integrity of the pari - mutuel

industry would suffer from the Department's

inability to enforce statutes relating to the

drugging of racing animals.

Hennessey , 818 So. 2d at 699 - 700 (emphasis added).

57 . Respondents argue that the Department is relying on the

absolute insurer rule while not following the testing procedures

outlined in rule 61D - 6.005 in that trainers are not permitted to

be present while pre - race samples, as opposed to post - race

samples are taken. However, by its terms, rule 61D - 6.005 only

applies to post - race sampling. The rule provides in pertinent

part:

(1) The winner of every race and other such

racing animal participants the stewards,

judges, division, or track veterinarian of

the meet designate, shall be sent immediately

after the race to the detention center for

examination. . . .

* * *

(3) The own er, trainer of record, groom, or

other authorized person shall be (present in

the testing enclosure) able to witness when

urine, blood or other specimens are taken

from that person's racing animal. The

specimen shall be sealed in its container,

assigned a n official sample number which is

affixed to the specimen number which is

affixed to the specimen container, and the

correspondingly numbered information portion

of the sample tag shall be detached and

signed by the owner, trainer, groom or the

authorized person as a witness to the taking

and sealing of the specimen. The racing

animal and authorized representative shall

remain in the detention enclosure until the

sample tag is signed. Said specimens shall

be maintained in such a manner as to preserve

the integrity of the specimen. . . .

58 . While the rule expressly references post - race testing,

there is no corresponding reference to pre - race testing. Neither

party has cited, and the undersigned has not located, a rule

addressing the procedure to be us ed for pre - race testing. In

practice, the more credible evidence indicates that the trainer

or other authorized person cannot be prese nt in the testing

enclosure, as they are not permitted to be in the area while the

greyhounds race.

59 . Holding the tra iner of record accountable is troubling

where, contrary to the record established in Hennessey , the

trainer or his employee is not with the greyhound at all times

prior to the race, and is in fact prohibited from being present .

This situation lends itself to liability without authority.

However, rule 61D - 6.002(1) is a validly adopted rule of the

Department, and Respondents have not challenged its validity as

opposed to its application. Under these circumstances, it must

be applied to Respondents. Accord ingly, the Department has

proven that the Respondents, Casey and Richard Alves, have

violated section 550.2415 (1)(a) with respect to the animals named

in the Administrative Complaints.

60 . Section 550.2415(3)(a) enumerates the penalties for

violating the section: suspension, revocation or denial of a

license or permit; a fine not exceeding $5,000; full or partial

return of the purse, sweepstakes, and trophy of the race at

issue; or any combination of the penalties listed above.

Petitioner has adopted disciplinary guidelines for administering

these penalties. Florida Administrative Code Rule 61D - 6.001(2)

specifies that with respect to Class I impermissible substances,

the penalty range is a $500 to $1,000 fine, and suspension or

revocation of the lice nse. For subsequent violations, the

penalty range is the same, except that the possible fine amount

increases to a range of $1,000 to $5,000.

6 1 . While there is no question that Respondents have

violated section 550.2415, in recommending penalty the

undersigned has taken into account that the trainer of record is

not present when the dogs are tested pre - race and does not have

supervision and control for a significant period of time prior to

the race. The testimony presented regarding Respondents' car e of

their animals was credible, and the testimony that no drugs or

illegal paraphernalia was discovered in their kennels was

unrebutted. Likewise, no prior violations of section 550.2415

have been established. Under these circumstances, revocation of

Re spondents' licenses is not appropriate.

RECOMMENDATION

Upon consideration of the facts found and conclusions of law

reached, it is

RECOMMENDED that the Department of Business and Professional

Regulation, Division of Pari - Mutuel Wagering enter a final order

finding that Respondent Casey Alves violated section

550.2415(1)(a); impose an administrative fine of $2,000; and

suspend his occupational license for a period of one year,

retroactive to January 31, 2011. It is further recommended that

the Department en ter a final order finding that Richard Alves

violated section 550.2415(1)(a); impose an administrative fine of

$1,500 and suspend his occupational license for one year,

retroactive to January 31, 2011.

DONE AND ENTERED this 19 th day of September , 20 11 , in

Tallahassee, Leon County, Florida.

S

LISA SHEARER NELSON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 19 th day of September , 20 11 .

COPIES FURNISHED:

David Perry, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 40

Tallahassee, Florida 32399 - 2202

Mitchell G. Wrenn, Esquire

958 Ridgewood Avenue

Daytona Beach , Florida 32114

Milton Champion, Director

Division of Pari - Mutuel Wagering

Department of Business and

Professional Regulation

1940 North Monroe Stre et

Tallahassee, Florida 32399

Layne Smith, General Counsel

Department of Business and

Professional Regulation

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.