14-000898PL Department Of Business And Professional Regulation, Division Of Pari-Mutuel Wagering vs. James E. O'Donnell Status: Closed Recommended Order on Wednesday, December 24, 2014.

Summary: Respondent failed to keep proof of vaccination for racing greyhounds and had hypodermic needles in prohibited areas, and a file of $76,000 is recommended.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND

PROFESSIONAL REGULATION,

DIVISION OF PARI - MUTUEL

WAGERING,

Petitioner,

vs. Case Nos. 14 - 0898PL

14 - 0907PL

JAMES E. O ' DONNELL,

Respondent.

_______________________________/

RECOMMENDED ORDER

Th e s e case s came before Administrative Law Judge F. Scott

Boyd for final hearing by video teleconference on October 29

and 30 , 201 4 , with sites in Miami and Tallahassee, Florida .

APPEARANCES

For Pet itioner: Richard McNelis, Esquire

Louis Trombetta, Esquire

Department of Business and

Professional Regulation

Division of Pari - Mutuel Wagering

1940 North Monroe Street, Suite 40

Tallahassee, Florida 32399 - 2202

For Respondent: Hilton Napoleon, II, Esquire

Rasco Klock Perez Nieto, P.L.

2555 Ponce De Leon Boulevard, Suite 600

Coral Gables, Florida 33134

STATEMENT OF THE ISSUE S

Whether Respondent failed to keep proof of vaccination on

file for racing greyhounds in his kennel , had a hypodermic

needle on premises where racing greyhounds were lodged or kept,

or stored cleaning supplies in the same area as bedding intended

for racing greyhounds, as alleged in the Administrative

Complaint , and if so, what is the appropriate sanction.

PRELIMINARY STATEMENT

On January 2 8 , 2014, Petitioner, Department of Business and

Professional Regulation, Division of Pari - Mutuel Wagering

("Department" or "Petitioner") , filed a n Administrative

Complaint against Respondent, Mr. James E. O ' Donnell . The

complaint a lleg ed 96 counts 1/ of fa ilure to maintain proof of

vaccination of racing greyhounds, in violation of Florida

Administrative Code Rule 61D - 6.009(9)(b) . 2/

On January 31 , 2014, the Department filed a second

Administrative Complaint against Mr. O ' Donnell. Th is complaint

alleged two counts of violation of r ule 61D - 6.00 4 ( 2 )( a ), for

having a hypodermic needle on the grounds of a permitholder

where racing animals are lodged or kept; and one count of

violation of r ule 61D - 2.023(1), for failing to store cleaning

supplies in areas separate from food and bedding intended for

racing animals.

Mr. O ' Donnell requested an administrative hearing in each

case, and they were forwarded to the Division of Administrative

Hearings ( " DOAH " ) for assignment of an A dministrative L aw J udge.

The first Admini strative Complaint was assigned as DOAH C ase

No. 14 - 0898PL. The second complaint was assigned DOAH C ase

No. 14 - 0907PL. The two cases were consolidated on March 5,

2014, and after several continuances, came on for hearing on

October 29 and 30, 2014.

The parties stipulat ed to certain facts , which w ere

accepted at hearing and are included among those set forth

below. The Department presented the testimony of four

witnesses : M r . Tyrell Smith , a n investigator with the

Department ; Dr. Ann Romano, a veterinar ian; Mr. Charles Taylor,

an investigative specialist with the Department; an d

Mr. O ' Donnell, Respondent. Petitioner offered three exhibits ,

P - 7 through P - 9 , which were admitted into evidence.

Mr. O ' Donnell testified and present ed the testimony of one other

witness , M r. Dennis Smith, a trainer employed by Mr. O ' Donnell.

Mr. O ' Donnell offered no exhibits. Official recognition was

given to the d eath c ertificate for Dr. Emilio Vega as well as

several statutes and administrative rules .

The first volum e of the two - volume Transcript of the

hearing was filed at D OAH on November 26, 2014 , and the second

on December 22, 2014, although both parties had the full

T ranscript by the November date . Pursuant to Respondent ' s

unopposed m otion, the deadline for filing p roposed r ecommended

o rders was extended to December 12, 2014. Respondent ' s second

motion to extend time to file proposed recommended orders, filed

on December 12, 2014, was opposed by Petitioner. On December

15, 2014, an Order was issued gra nting Respondent ' s motion in

part, allowing Respondent to file a proposed recommended order

by 10:00 a.m. on December 16, 2014, and Petitioner to respond to

that filing the same day. Both p roposed r ecommended o rders were

considered .

FINDINGS OF FACT

1. The Department is the state agency charged with

regulating pari - mutuel wagering in the s tate of Florida,

pursuant to chapter 550, Florida Statutes .

2 . Mr. O ' Donnell owns racing greyhounds. He keeps his

dogs, along with some leased dogs of other owner s, in kennels

that he leases for that purpose .

3 . At all times material to this case, Mr. O ' Donnell held

a pari - mutuel wagering business occupational license,

number 441699, issued by the Department .

4 . At all times material to this case, Mr. O ' Donnell h eld

a pari - mutuel wagering professional individual license,

number 330177, issued by the Department .

5 . A " permitholder " is a person or entity which holds an

annual license to conduct pari - mutuel operations at the location

specified in the permit. The licenses held by Mr. O ' Donnell do

not allow him to operate a pari - mutuel track or to conduct pari -

mutuel operations at specified locations. Mr. O ' Donnell is not

a permitholder.

6 . Mr. O ' Donnell employed a licensed trainer, Mr. Dennis

Smith, who was r esponsible for day - to - day activities involving

the dogs. Mr. O ' Donnell personally kept responsibility for

set ting up vaccinations for the dogs. Mr. O ' Donnell was not

always physically present when vaccinations were given .

7 . Dr. Emilio L. Vega was a lic ensed veterinarian that

Mr. O ' Donnell employed to vaccinate his racing dogs. Dr. Vega

came to Mr. O ' Donnell ' s kennels for many years to vaccinate

the dogs. Dr. Vega died on September 4, 2010, at the age

of 80 years.

8 . On September 14, 2011, I nvestigat or Tyrell Smith of the

Department was reviewing operations of licensees who own or

train greyhounds at the Florida Kennels Compound in Hialeah,

Florida. At kennel number 45, leased by Mr. O ' Donnell, he asked

a kennel helper to let him inspect the vaccination records for

the dogs. 3/ Fifty - two vaccination records that had been signed

in 2011 were produced for dogs in that kennel, and the helper

indicated that Mr. O ' Donnell was keeping vaccination records for

other dogs. Investigator Smith noted that the name in the

veterinarian ' s signature block on the forms was Dr. Vega. He

was not aware at that time that Dr. Vega was deceased and could

not have signed the forms in 2011.

9. On September 23, 2011, I nvestigator Smith asked a

kennel helper at St eubenville Kennel, numbers 36 and 37, which

are also leased by Mr. O ' Donnell, for vaccination records for

the dogs. The kennel helper provided four records that

contained the name of Dr. Vega in the veterinarian ' s signature

block, dated in 2011.

10 . Afte r talking with other trainers at the track,

I nvestigator Smith learned that Dr. Vega had died in 2010. On

September 30, 2011, I nvestigator Smith and other employees of

the Department visited two animal clinics where Dr. Vega had

formerly worked. The clin ics did not have vaccination records

for dogs in any of Mr. O ' Donnell ' s kennels. Investigator Smith

was able to view copies of some other vaccination records, and

the signature appeared to I nvestigator Smith to be the same

signature that appeared on the forms that had been given to him

for the dogs in Mr. O ' Donnell ' s kennels.

11 . On October 4, 2011, I nvestigator Smith visited kennel

number 39 in Hialeah and asked Mr. O ' Donnell for the vaccination

records for those dogs . Mr. O ' Donnell told him that the records

had been stolen. Investigator Smith asked Mr. O ' Donnell if he

had filed a police report. Mr. O ' Donnell said he had not. He

indicated that he would just re - do the vaccinations.

12 . Investigator Smith returned to kennel number 39 on

October 14, 2 011. The vaccination records were not available.

Mr. O ' Donnell gave I nvestigator Smith the telephone number of

Dr. Ann Romano , a veterinarian , and was told that she would be

able to give him the vaccination information . Investigator

Smith called Dr. Rom ano, but had only a very brief conversation

with her, because communication was poor and because she was

leaving on vacation.

13 . On October 25, 2011, Investigator Smith returned to

kennel number 39 and again requested to see vaccination records

for the d ogs . He was provided records signed on October 24,

2011 , by Dr. Romano . He later talked to Dr. Romano, who

confirmed that she had vaccinated the dogs on October 24, 2011,

but had not ever vaccinated any of Mr. O ' Donnell ' s dogs before

that date .

14 . The rule provides no " grace period " for enforcement of

the requirement to keep proof of vaccination on file.

15 . Mr. Charles Taylor is an investigation specialist for

the Department. Investigator Taylor w as asked by his supervisor

to go to the Orange Park K ennel Club ("Orange Park") and examine

dog vaccination records for dogs in Mr. O ' Donnell ' s kennels to

see if any had been signed by Dr. Vega. Investigator Taylor

visited the Orange Park facility on December 21, 2011. In the

r acing s ecretary ' s office, he found 56 National Greyhound

Association papers , with vaccination records attached, for dogs

in Mr. O ' Donnell ' s kennels. The National Greyhound Association

is an association that registers racing greyhounds. Examining

these 56 vaccination records, he foun d that 21 of th e m contained

the name of Dr. Vega in the veterinarian ' s signature block , wi th

dates ranging from January 15, 2011 , to September 16, 2011. He

also found one undated, blank record with Dr. Vega ' s name in the

veterinarian ' s signature block. Investigator Taylor made copies

of the se vaccination records. He did not contact either

Mr. O ' Donnell or the trainer of record about the se vaccination

records.

16 . Dr. Vega was deceased and did not sign any vaccination

forms in 2011. Any forms purportin g to contain his signature

with a 2011 date were invalid and did not constitute proof of

vaccination. The Department had visited the workplaces of

Dr. Vega , and n o other p roof of vaccination could be obtained

through the treating veterinarian.

17 . On Aug ust 27, 2013, Mr. O ' Donnell occupied or had the

right to occupy kennel number 45, at the Florida Kennels

Compound, 7218 West Four th Avenue, Hialeah, F lorida, 33014.

18 . Mr. Luis Miranda is the facility manager of the

Florida Kennel Compound. He conducts regular walk - through

inspections of the kennels. Mr. Miranda points out any

violations he observes to I nvestigator Smith when he comes to

inspect the kennels. On Aug ust 27, 2013, Mr. Miranda told

I nvestigator Smith that Mr. Miranda had found that kennel 45 was

dirty during his walk - through inspection. 4 /

1 9. Investigator Smith went to kennel 45. There was no

one there. A kennel is never locked, because it must remai n

open for safety of the dogs ; however, there is a security gate

and guard on duty at the entrance to the facility, and only

licensees can gain entrance. Inspector Smith testified that

kennel 45 did not appear dirty. He looked in the medicine

cabinet in the kitchen area of the kennel, which is only about

five feet from the dogs. He saw a syringe with a hypodermic

needle attached. He confiscated it, took a picture, and placed

it in a storage container. He never asked Mr. O ' Donnell about

the needle.

20 . On October 10, 2013, Mr. O'Donnell occupied or had the

right to occupy kennel numbers 36 and 37, at the Florida Kennels

Compound .

21 . On October 10, 2013, Inspector Smith conducted an

inspection of kennel numbers 36 and 37 , the Steubenville Ken n el.

He found the vaccination records all in order. He found a bottle

of Clorox bleach and spray bottles containing unknown substances

sitting on top of a crate that had a dog sleeping inside. He

asked kennel workers about the chemicals. They told him they h ad

just put them up there for cleaning and would move them in a few

minutes. He found a hypodermic needle with syringe in kennel 36 .

He photographed these items. Kennel helpers removed the bleach

and spray chemicals. Mr. O ' Donnell was not there when

In vestigator Smith arrived, but came later while Investigator

Smith was still there.

22 . While the Department showed that a bottle of Clorox

cleaning solution was on top of a crate that had a dog sleeping

inside, it did not clearly show that the Clorox cleaning

solution was being " stored " there. The word " store " is

defined as " to take in or hold supplies, goods, or articles,

as for future use " or " to deposit or receive in a storehouse

or warehouse for safekeeping " or " to put something that

is not being used in a place where it is available,

where it can be kept safely, etc. " See Random House

Dictionary, Random House, Inc. (2014), online at

http://dictionary.reference.com/browse/store ; American

Heritage Dictionary of the English Language,

5th ed. (201 4 ) , by Houghton Mifflin Harcourt , at

www.ahdictionary.com/word/search.html?q=store ; and

Merriam - Webster Online Dictionary, http://www.merriam -

webster.com/ dictionary/ store . If the helpers only placed

the Clorox on the c rate while they were using it, as claimed,

the Clorox and other cleaning materials were not " stored " there.

There was no clear evidence to refute the helper s ' admissions .

23 . The Department showed by clear and convincing evidence

that Mr. O ' Donnell failed to keep proof of vaccination for 52 of

his racing greyhounds on September 14, 2011.

24 . The Department showed by clear and convincing evidence

that Mr. O ' Donnell failed to keep proof of vaccination for his

racing greyhounds on October 4, 20 11.

25 . The Department showed by clear and convincing evidence

that Mr. O ' Donnell failed to keep proof of vaccination for 21 of

his racing greyhounds on December 21, 2011.

26 . The Department showed by clear and convincing evidence

that on August 27, 2 013, and October 10, 2013, Mr. O ' Donnell had

hypodermic needles with syringes on premises which he had a

right to occupy on the grounds of a racing permitholder where

racing greyhounds were kept.

27 . Mr. O ' Donnell has been involved with racing greyhounds

for over 60 years. Prior to the incidents involved in this

case, Mr. O ' Donnell had never received a notice of violation

from the Department.

CONCLUSIONS OF LAW

28 . DOAH has jurisdiction over the parties and the subject

matter of this p roceeding pursuant to sections 120.569 and

120.57(1), Florida Statutes (2014).

2 9. A proceeding to suspend, revoke, or impose other

discipline upon a license is penal in nature. State ex rel.

Vining v. Fla. Real Estate Comm ' n , 281 So. 2d 487, 491 (Fla.

1973). Petitioner must therefore prove the charges against

Respondent by clear and convincing evidence. Fox v. Dep ' t of

Health , 994 So. 2d 416, 418 (Fla. 1st DCA 2008)(citing Dep ' t of

Banking & Fin. v. Osborne Stern & Co. , 670 So. 2d 932 (Fla.

1996)).

30 . The clear and convincing standard of proof has been

described 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 testimony must

be precise and explicit and the witnesses

must be lacking in confusion as to the facts

in issue. The evidence must be of such

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 established.

In re Davey , 645 So. 2d 398, 404 (Fla. 1994)(quoting Slomowitz

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

31 . Whether Respondent committed the charged offenses is a

question of ultimate fact to be decided by the trier - of - fact in

the context of each alleged violation. McKinney v. Castor , 667

So. 2d 387, 389 (Fla. 1st DCA 1995); Langston v. Jamerson , 653

So. 2d 489, 491 (Fla. 1st DCA 1995).

32 . As noted in endnot e 1, the Administrative Complaint in

C ase No. 14 - 0898 PL contained several minor errors . These are

const r ued in Respondent ' s favor in each instance. The

allegations were clear , and Respondent was in no way prejudiced

by the miscounting of dogs or duplication of charges. An

administrative complaint must only state the acts complained of

with sufficient specificity to allow an applicant a fair chance

to prepare a defense. Davis v. Dep ' t of Prof 'l Reg. , 457 So. 2d

1074 (Fla. 1st DCA 1984).

33 . Section 550.0251 ( 3 ), Florida Statutes, requires the

Division of Pari - mutuel Wagering to adopt reasonable rules for

the control, supervision, and direction of all applicants,

permittees, and licensees, and for the holding, conducting, and

operating of all racetracks, race meets, and races held in this

state.

Case N o. 14 - 0 898 PL

34 . Florida Administrative Code Rule 61D - 6.00 9 ( 9 ) p rovide d

in relevant part :

(a) All racing animals shall be inoculated

for infectious, contagious, and epizootic

diseases including the following, and given

boosters as recommended by veterinarians:

1. CANINE: Each of the following, once per

year: Distemper, Adenovirus (Hepatitis),

Leptospirosis, Para - Influenza, Parvo,

Bordetella bronchiseptica and Rabies.

* * *

( b ) Proof of vaccination for each active or

inactive racing greyhound must be kept on

file by the kennel owner/operator, train er

of record or designee and be subject to

inspection by the division, provided,

however, that failure to possess such proof

shall not be the basis for disciplinary

action if proof of inoculation can be

secured through the treating veterinarian.

35 . Res pondent argues that many of his dogs were up for

adoption, and , therefore , not " racing " dogs. However, u nder

section 550.002(29) , a " racing greyhound " means a greyhound that

is or was used in racing, and rule 61D - 6.009(9) expressly

requires proof of vacci nation of racing greyhounds, whether they

are active or inactive. It does not matter for purposes of the

rule if the dogs in Respondent ' s kennels were inactive dogs that

were up for adoption, brood matron s , or stud dog s . Vaccination

records still needed to be maintained on them.

36 . Respondent argues that because the statute requires

not only the kennel owner/operator, but also the trainer of

record or designee to be responsible for keeping proof of

vaccination on file, Petitioner was required to reque st records

from each of these parties to prove that the records were not

kept. While th is argument might have merit under some

circumstances, it is rejected under the facts here. The alleged

violations on September 14, 2011, and December 21, 2011, were

b ased not upon an absence of records, but upon the fact that the

record s that were kept were invalid, and so failed to meet the

rule ' s requirement. The alleged violation on October 4, 2011 ,

was based on Respondent ' s own statement that the records had

been stolen.

37 . Respondent correctly points out that Petitioner did

not adduce testimony or other evidence that the vaccination

records that were supplied to Petitioner were those of the

specific dogs named in the A dministrative C omplaint . Respondent

argues that , as a result, none of charges in the Administrative

Complaint have been proved. This argument is rejected. The

Transcript reflects Mr. O ' Donnell ' s testi mony:

Q: Were the dogs named in the complaint in

your kennels from September through December

of 2011?

A: I ' m positive - Î I ' m pretty positive.

Other e vidence clearly showed that Mr. O ' Donnell leased

kennels 45 and 39. T e stimony from I nvestigator Smith clearly

indicated that he was provided vaccination records for 52 dogs

in kennel 45 on September 1 4, 2011 , that had been signed by

Dr. Vega and were dated in 2011. It was also clearly shown

that on December 21, 2011, I nvestigator Taylor received

21 vaccination records for dogs in Mr. O ' Donnell ' s kennels at

the Orange Park facility that were signed by Dr. Vega and dated

in 2011.

38 . Wh ile presenting evidence at hearing as to the names

of the specific dogs on the vaccination forms might have been

advis a ble, it was not required. Even in criminal cases, failure

to prove specific facts alleged in a charging document is

permitted so long as th ose facts are not essential elements of

the charged offense. Mitchell v. State , 888 So. 2d 665, 668

(Fla. 1st DCA 2004)( conviction affirmed because language in the

information identifying the specific means by which the

defendant put the victim in fear was not an essential element of

the offense and proof that victim was put in fear by another

means was sufficient); Ingleton v. State , 700 So. 2d 735 (Fla.

5th DCA 1997)(conviction affirmed altho ugh language charged that

defendant was murdered " by strangling " when evidence showed

murder was committed through cocaine overdose , because method by

which murder was committed was surplusage and not an essential

element of the offense); In the Interest o f W.M. , 491 So. 2d

1263 (Fla. 4th DCA 1986)(conviction for aggravated assault

affirmed upon proof that defendant used a BB gun, despite charge

that weapon used was a handgun, because the type of weapon used

was not an element of aggravated assault); Mas v. State , 222 So.

2d 250 (Fla. 3d DCA 1969) (conviction for v iolati on of a statute

prohibiting the throwing of a missile that could produce death

or great bodily harm affirmed even though t he information

charged that the particular missile was a fire - bomb, bu t no such

proof was adduced at trial , because language as to the specific

missile thrown was surplusage and not an essential element of

the offense ) . An administrative hearing does not require more.

3 9. The names of the dogs listed in the Administrative

Complaint were surplusage, and it was not necessary for

Petitioner to prove that these particular dogs were the ones

without proof of vaccination.

40 . Rule 61D - 6.009(9)(b) expressly provides that fai lure

to keep proof of vaccination on file shall not be the basis for

disciplinary action if proof of inoculation can be secured

through the treating veterinarian. The rule is not entirely

clear as to who has this responsibility, but the restriction is

set forth in the same sentence which creates the basis for

disciplinary action , so it does not appear to be an affirmative

defense. Further, any ambiguity must be construed in favor of

Respondent. Djokic v. Dep ' t of Bus. & Prof ' l Reg. , 875 So. 2d

693 (Fla. 4th DCA 2007). It was clear ly shown that no proof of

inoculation could be secured with respect to the invalid records

supplied by Respondent. Dr. Vega was long since deceased, and

Petitioner had determined that his workplaces had no records.

With respec t to the October 4, 2011, inspection, in which no

records were found, Respondent referred Petitioner t o Dr. Romano

and said that she would be able to give information on the

vaccinations. However, Dr. Romano did not give any

immunizations until October 24 , 2011. Petitioner clearly

demonstrated t hat proof of inoculation could not be secured

through the trea t ing veterinarian.

41 . Petitioner proved by clear and convincing evidence

that Respondent violated rule 61D - 6.009(9)(b) on September 14,

2011, by failing to keep proof of vaccination on file, as

alleged in counts 1 through 52 of the Administrative Complaint

in C ase No. 14 - 0898 PL .

42 . Petitioner has conceded that counts 53 through 57 of

Petitioner ' s Administrative Complaint in C ase No. 14 - 0 898 PL were

not proven by clear and convincing evidence.

43 . Petitioner proved by clear and convincing evidence

that Respondent violated rule 61D - 6.009(9)(b) on October 4,

2011, by failing to keep proof of vaccination on file, as

alleged in count 58 of the Admi nistrative Complaint in C ase

No. 14 - 0898 PL .

44 . Petitioner has conceded that counts 59 through 74 of

Petitioner ' s Administrative Complaint in C ase No. 14 - 0 898 PL were

not proven by clear and convincing evidence.

45 . Petitioner proved by clear and convinci ng evidence

that Respondent violated rule 61D - 6.009(9)(b) on December 21,

2011, by failing to keep proof of vaccination on file, as

alleged in counts 75 through 95 of t he Administrative Complaint

in C ase No. 14 - 0898 PL .

Counts 1 and 2, Case N o. 14 - 0 907 PL

46 . Rule 61D - 6.004(2) , entitled " Prohibited Devices,

Medications, and Procedu r es; Exceptions, " provide d in relevant

part:

(a) No licensee within the grounds of a

racing permitholder where racing animals are

lodged or kept shall have in or upon the

premis es which that person occupies or has

the right to occupy, or in that licensee ' s

personal property or effects, the following:

* * *

2. Any hypodermic needle, injectable vial,

syringe capable of accepting a hypodermic

needle or which may accept a volume greater

than 6 ounces, tube device for naso - gastric

or gastric intubation;

47 . Petitioner proved by clear and convincing evidence

that Respondent violated rule 61D - 6.004(2)(a)2. on August 27,

2013, and October 10, 2013, as alleged in counts 1 and 2 of the

Administrative Complaint in C ase No. 14 - 0907 PL .

Count 3, Case N o. 14 - 0 907 PL

48 . Rule 61D - 2.023, entitled " Animal Welfare, " provide d in

relevant part:

(1) A permitholder shall ensure that:

* * *

(d) All of the permitholder ' s cleaning

supplies and pesticides are stored in areas

separate from food and bedding intended for

racing animals;

4 9. Petitioner has conceded that it did not prove by

clear and convincing evidence that Respondent violated

r ule 61D - 2.023(1)(d), as alleged in count 3 of Petitioner ' s

Administrative Complaint in C ase No. 14 - 0 907 PL .

Penalty

50 . Section 550.105(5)(b) provides in part that the

D ivision of Pari - mutuel Wagering may deny, suspend, revoke, or

declare ineligible any occupational license if the applicant for

or holder thereof has violated the provisions of this chapter or

the rules of the D ivision of Pari - mutuel Wagering governing the

conduct of persons connected wi th racetracks and frontons.

51 . Section 550.105(5) (e) provides in part that t he

Division of Pari - mutuel Wagering may impose a civil fine of up

to $1,000 for each violation of the rules of the Division of

Pari - mutuel Wagering in addition to or in lieu of a ny other

penalty provided for in that section.

52 . Rule 61D - 2.021 , entitled " Aggravating and Mitigating

Circumstances , " provides:

Circumstances which may be considered for

the purposes of mitigation or aggravation of

any penalty shall include, but are not

limited to, the following:

(1) The impact of the offense to the

integrity of the pari - mutuel industry.

(2) The danger to the public and/or racing

animals.

(3) The number of repetitions of offenses.

(4) The number of complaints filed against

the licensee or permitholder, which have

resulted in prior discipline.

(5) The length of time the licensee or

permitholder has practiced.

(6) The deterrent effect of the penalty

imposed.

(7) Any efforts at rehabilitation.

(8) Any other mitigating or aggravating

circumstances.

53 . Under the circumstances of this case, f ailure to keep

proof of vaccination created a danger to the health of racing

animals and the potential for rapid spread of disease throughout

the entire greyhound racing industry. Th e number of repetitions

of offenses was significant and showed a pattern or practice

rather than mere oversight. On the other hand, there was no

evidence of prior discipline, and Respondent has been involved

with the greyhound racing industry for over 6 0 years.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED :

T hat the Department of Business and Professional

Regulation, Division of Pari - m utuel Wagering, enter a final

order : (1) finding M r . James E. O ' Donnell guilty of 74 counts of

violating Florida Administrative Code Rule 61D - 6.009(9) and two

counts of violating Florida Administrative Code Rule 61D -

6.00 4(2)(a) ; and (2) impos ing an administrative fine of $ 76 ,000.

DONE AND ENTERED this 2 4th day of December , 201 4 , in

Tallahassee, Leon County, Florida.

S

F. SCOTT BOYD

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 24th day of December , 2014 .

ENDNOTES

1/ There are several minor errors in numbering the counts in the

Administrative Complaint in DOAH Case No. 14 - 0898PL. The

portion of the complaint entitled " Counts 1 - 52 " actually lists

the names of 62 dogs. The portion of the complaint entitled

" Counts 53 - 57 " lists the names of only four dogs, not five. The

failure to have proof of vaccination on these four dogs was also

already charged as part of counts 1 through 52. The portion of

the complaint entitled " Counts 59 - 74 " lists the names of only

15 dogs, not 16. The portion of the complaint entitled

" Counts 75 - 96 " lists the names of only 21 dogs, not 22. Th e

complaint is construed in Respondent ' s favor in each instance.

2/ References to statutes and rules throughout this Recommended

Order are to versions in effect at the time of the alleged

violations, except as otherwise indicated.

3/ The testimony that I nvestigator Smith was visiting

Mr. O ' Donnell ' s kennels because he had been told by the trainer

at another kennel that he had seen Mr. O ' Donnell falsifying his

vaccination records was used only to explain I nvestigator

Smith ' s actions. The trainer of the other kennel was not called

as a witness and the statement attributed to him was hearsay,

which cannot be used as proof of the truth of that assertion.

4/ Mr. Miranda did not testify. Again, I nvestigator Smith ' s

testimony as to what Mr. Miranda told him he observed in

kennel 45 was hearsay. This hearsay testimony was not used to

show that a syringe was actually in the kennel, but only as the

information that prompted I nvestigator Smith to examine

kennel 45 on August 27, 2013.

COPIES FURNISHED:

Richa rd McNelis, Esquire

Louis Trombetta, Esquire

Department of Business and

Professional Regulation

Division of Pari - Mutuel Wagering

1940 North Monroe Street, Suite 40

Tallahassee, Florida 32399 - 2202

(eServed)

Hilton Napoleon, II, Esquire

Rasco Klock Perez Nieto, P.L.

2555 Ponce De Leon Boulevard, Suite 600

Coral Gables, Florida 33134

(eServed)

J. Layne Smith, General Counsel

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399 - 2201

(eServed)

Leon M. Biegalski, Director

Division of Pari - Mutuel Wagering

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399

(eServed)

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.