17-001533PL Department Of Business And Professional Regulation, Division Of Pari-Mutuel Wagering vs. Robert G. Dawson Status: Closed Recommended Order on Wednesday, July 26, 2017.

Summary: Petitioner proved 18 counts of racing a greyhound with a drug. Separate counts for drugs that were possibly metabolites of primary drug constituted a mitigating factor.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND

PROFESSIONAL REGULATION,

DIVISION OF PARI - MUTUEL

WAGERING,

Petitioner,

vs. Case No. 17 - 1533PL

ROBERT G. DAWSON,

Respondent.

_______________________________/

RECOMMENDED ORDER

Th is case came before Administrative Law Judge F. Scott

Boyd at video teleconferencing sites in West Palm Beach and

Tallahassee , Florida, on June 13, 2017 .

APPEARANCES

For Petitioner: Charles LaRay Dewrell, Jr., Esq uire

Joseph Yauger Whealdon, III, Esquire

Department of Business and

Professional Regulation

Division of Pari - mutuel Wagering

2601 Blair Stone Road

Tallahassee, Florida 32399

For Respondent: Robert Glenn Dawson , pro se

21 Horicon Court

Royal Palm Beach, Florida 33411

STATEMENT OF THE ISSUE S

Whether Respondent raced an animal that was impermissibly

medicated or determined to have a prohibited substance present,

in violation of section 550.2415(1)(a), Florida Statutes

(201 6 ) , 1/ as alleged in the Administrative Complaint ; and , if so,

what sanction is appropriate.

PRELIMINARY STATEMENT

The Department of Business and Professional Regulation,

Division of Pari - Mutuel Wagering (Petitioner or Division),

served an Administrative Complaint on Robert Dawson (Respondent

or Mr. D awson) on or about October 14 , 201 6 . The complaint

alleged that Respondent was the trainer of record of racing

greyhounds in six races at Florida racetracks on dates from

September 3 , 2016 , through September 1 7, 201 6 , charging

18 counts of violation s of statutes and rules governing pari -

mutuel racing. Respondent disputed material facts alleged in

the complaint and timely requested an administrative hearing .

On November 17, 2016, t he case was forwarded to the Division of

Administrative Hearings (DOAH) fo r assignment of an

A dministrative L aw J udge .

The parties stipulat ed to certain facts , which w ere

accepted at hearing and are included among those set forth

below. Petitioner presented the testimony of Ms. Margaret

Wilding, a ssociate d irector of the University of Florida Racing

Laboratory; Ms. Jessica Zimmerman, a chief veterinary assistant

at the Division ; and Respondent . Petitioner also offered

E xhibits P - 1 through P - 2 4 , which were admitted without

objection. At Petitioner ' s request , official recognition was

given to section 550 .2415 and Florida Administrative Code

Rules 61D - 6.002, 61D - 6.007, and 61D - 6.012. 2/

Respondent testified and presented the testimony of

Mr. Andre Tribble, a Division inspector; Mr. Henry Chin, a

kennel owner and trainer ; Mr. Anthony Calvo, a trainer for B&B

Kennels; and Mr. Arthur Agganis , a kennel owner . Respondent

offered no exhibits.

The one - volume Transcript of the hearing was filed at DOAH

on July 6, 201 7 . Petitioner ' s Proposed Recommended Order was

timely filed and was considered in the preparation of this

Recommended Order .

FINDINGS OF FACT

1. The Division is the state entity charged with

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

pursuant to chapter 550 .

2 . Mr. Dawson is the holder of Pari - Mutuel Wagering

Occupational License number 333293 - 1021, authorizing him to

train greyhounds pursuant to s ection 550.105.

3 . At all times relevant to the Administrative Complaint,

Mr. Dawson was subject to chapter 550 and the implementing rules

in Florida Administrative Code C hapter 61D - 6 .

4 . Palm Beach Kennel Club is a facility operated by a

permitholder authorized to conduct pari - mutuel wagering in this

state under c hapter 550.

5 . Mr. Dawson trained and raced greyhounds at the Palm

Beach Kennel Club facility from September 3 to 17, 2016, the

time period relevant to the Administrative Complaint.

6 . Mr. Dawson was the trainer of record for the racing

greyhound " BOB ' S SEAHAWK " on September 3, 2016.

7 . Mr. Dawson was the trainer of record for the racing

greyhound " PJ HO HEY " on September 4, 2016.

8 . Mr. Dawson was the trainer of record for the racing

greyhound " JIM ' S GRAND SLAM " on September 5, 2016.

9 . Mr. Dawson was the trainer of record for the racing

greyhound " BS ANGEL " on September 7, 2016.

10 . Mr. Dawson was the trainer of record for the racing

greyhound " PJ SMOKE EM OUT " on September 9, 2016.

1 1 . Mr. Dawson was the tr ainer of record for the racing

greyhound " CENTEX WIZARD " on September 17, 2016.

1 2 . Under rule 61D - 6.002(1), " [t]he trainer of record

shall be responsible for and be the absolute insurer of the

condition of the . . . racing greyhounds he/she enters to rac e. "

1 3 . Mr. Da w son is substantially affected by the Division ' s

intended action.

14 . As Ms. Jessica Zimmerman testified, t he ginny pit is

the area at the Palm Beach Kennel Club where employees of the

Division collect urine samples from rac ing greyhounds prior to

the races . At the time each urine sample is collected, t he

veterinary assistant checks the number tattoo ed on the ear of

the dog and completes a PMW 503 Form . The PMW 503 Form shows

th at it was prepared for the Palm Beach Kennel Club and contain s

the date, the race and pos t number of the dog, the dog ' s name,

the tattoo number, the time the sample was collected, the

trainer ' s name , the collector ' s initials, and a unique s ample

number. The top portion of a sample tag containing the s ample

number is attached to the container holding the collected urine

sample, and the container is sealed with evidence tape to

maintain the integrity of the sample. The bottom part of the

sample tag is retained by the Division. Ms. Zimmerman signed

each PMW 503 Form , indicating the dogs named in the

Administrative Complaint, identifying Mr. Dawson as the trainer,

and assigning a unique s ample number to the urine sample

collected from each dog . At hearing, Ms. Zimmerman identified

th e PMW 503 Form that was co mpleted for each of the six race s in

the Administrative Complaint .

15 . The sealed urine samples are kept in a freezer in a

restricted area at the track until they are picked up for

shipping to the University of Florida racing laboratory . The

PMW 503 Form indicates the time and date samples were picked up.

16 . As Ms. Margaret W ilding testified, t he laboratory

receives only the information on the urine label with s amples

and does not know the identity of the dog or trainer. The

samples are checked to ensure the seal is intact and are then

assigned a number internal to the lab for processing , associated

with the s ample number .

17 . The Association of Racing Commissioners International

create s Uniform Classification Guidelines for Foreign

Substances. Classes range from class I drugs, which are

stimulants without therapeutic value and are most likely to

affect the outcome of a race, to class V drugs, which have the

most therapeutic value and the least potential to affect the

out come of a race.

18 . C affeine is a central nervous system stimulant and

class II drug; theobromine is a diuretic , smooth muscle

relaxant , and class IV drug ; and theophylline is a

bronchodilator , smooth muscle relaxant , and class III drug.

1 9. As Ms. Wilding testified, the urine sample s received

at the laboratory were analyzed by liquid chromatography - mass

spectrometry and sample 097442 was found to contain a

concentration of caffeine of 1.946 - 0.03 m c g/mL, a

concentration of theobromine of 859 - 90 ng/mL, and a

concentration of theophylline of 2.462 - 0.08 m c g/mL.

Sample 097466 was found to contain a concentration of caffeine

of 4.555 - 0.03 mcg/mL, a concentration of theobromine of

1.23 - 0.09 mcg /mL, and a concentration of theo phylline of

3.235 - 0.08 mcg/mL. Sample 104694 was found to contain a

concentration of caffeine of 3.911 - 0.03 mcg/mL, a

concentration of theobromine of 1.107 - 0.09 mcg/mL, and a

concentration of theophylline of 2.881 - 0.08 mcg/mL.

Sample 097486 was found to contain a concentration of caffeine

of 4.551 - 0.03 mcg/mL, a concentration of theobromine of

3.056 - 0.09 mcg/mL, and a concentration of theophylline of

8.05 - 0.08 mcg/mL. Sample 104746 was found to contain a

concentration of c affeine of 2.392 - 0.03 mcg/mL, a

concentration of theobromine of 1.893 - 0.09 mcg/mL, and a

concentration of theophylline of 4 . 169 - 0.08 mcg/mL. Sample

106083 was found to contain a concentration of caffeine of

2.457 - 0.03 mcg/mL, a concentrati on of theobromine of 664 -

0.09 n g/mL, and a concentration of theophylline of 1 .69 -

0.08 mcg/mL.

20. Under rule 61D - 6.007(3), levels of caffeine at a

urinary concentration less than or equal to 200 nanograms per

milliliter and levels of theophylline and theobromine at urinary

concentrations less than or equal to 400 nanograms per

milliliter are not reported to the Division. The levels found

by the laboratory tests and testified to by Ms. Wilding exceeded

these amounts.

2 1 . A Report of Positive Test Result was sent to the

D i vision regarding each of the urine samples. After the

Division received the laboratory report on each sample, the

report was matched to the retained sample tag . It was

determined that sample 097442 had been obtained from BOB ' S

SEAHAWK , sample 0974 66 from PJ HO HEY , sample 104694 from

JIM ' S GRAND SLAM , sample 0974 86 from BS ANGEL , sample 104746

from PJ SMOKE EM OUT , and sample 106083 from CENTEX WIZARD .

Each of the samples with the s ample numbers corresponding to the

dogs listed in the Administrative Complaint , th erefore , tested

positive for levels of these three drugs in excess of permitted

amounts. The trainer for each of these dogs was Mr. Dawson.

2 2 . The urine test results proved that each of the six

dogs listed in the Administrative Complaint carried the drug s

caffeine , theobromine, and theophylline in their bodies on their

respective race day s . Ms. Wilding later testified that the

three drugs are frequently found together, and that although

theobrom ine and theophylline could be administered separately,

in some concentrations they can be detected as metabolites of

caffeine. She indicated that it was possible they were

metabolites in this case.

2 3 . Mr. Henry Chin and Mr. Anthony Calvo , experienced

tr ainers, testified convincingly that it is impractical for a

trainer to remain with one of his dog s undergoing urine sample

collection to witness th e procedure, because a trainer is

responsible for many dogs and is unaware of the exact time that

a sample wi ll be collected. Even though t rainers have a right

to sign indicating that they witnessed the sample collection and

sealing, both indicated they do not do so. Both indicated they

preferred sample collection to be conducted after the races, as

has been done at certain times in the past , rather than before

the races.

2 4 . Mr . Calvo also testified that he has often seen trash

and spilled liquids, including coffee, in an area the leadouts

take the dogs through prior to their urine collection .

2 5 . Mr . Arth ur Agganis , who has worked in the racing

industry for 41 years, and has been Mr. Dawson ' s employer for

the last 20 of those , agreed that trainers cannot realistically

be with their dogs for testing prior to the races . He testified

that he prop o sed to the Division that closed circuit cameras be

installed in the ginny p it area to improve monitoring and that

" we would pay for it, " 3 / but that the Division never agreed to do

so.

2 6 . It is noted that the violations occurred close

together in time , an d that it is clear that Mr. Dawson was not

informed of the violations in one race before the samples were

taken in the next. This may be considered a mitigating factor

because Mr. Dawson would not have had a reasonable opportunity

to increase security, ad just medication levels, or alter

routines in response to earlier violations.

27. Mr. Andre Tribble convincingly testified that he could

not recall ever finding any caffeine in Mr. Dawson ' s kennel.

2 8 . Mr. Dawson has been licensed by the Division for so me

37 years, since 1980.

29. The Division presented no evidence that Mr. Dawson has

had previous discipline against his license.

CONCLUSIONS OF LAW

30 . The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

proceeding pursuant to sections 120.569 and 120.57(1), Florida

Statutes.

31 . The substantial interests of Respondent are being

determined by Petitioner , and Respondent has standing in this

proceeding.

32 . 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)).

3 3 . 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)).

3 4 . Section 550.2415 (1)(a) provide d in part :

The racin g of an animal that has been

impermissibly medicated or determined to

have a prohibited substance present is

prohibited. It is a violation of this

section for a person to impermissibly

medicate an animal or for an animal to have

a prohibited substance pre sent resulting in

a positive test for such medications or

substances based on samples taken from the

animal before or immediately after the

racing of that animal.

3 5 . Section 550.2415(1)(c) provided , in part: " [t]he

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. "

3 6 . Section 550.0251(3) required Petitioner 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.

3 7 . The statute also provided th at when a rac ing greyhound

has been impermissibly medicated or drugged, action may be taken

" against an occupational licensee responsible pursuant to rule

of the division " for the dog ' s condition. § 550.2415(2), Fla.

Stat.

3 8 . Consistent with the se sta tutes, Petitioner adopted

rule 61D - 6.002, the " absolute insurer rule, " making trainers

strictly responsible.

3 9 . Petitioner charged Respondent with 18 counts of

violation of section 550.2415 (1)(a), one count for each of the

three drugs found in the sample s taken before each of the six

race s .

40 . The procedures followed by the Division accurately

record ed the source of each sample, ensured the integrity of the

sample through storage and testing, 4 / and demonstrated the

presence of restricted drugs in the dogs on race day.

41 . Petitioner proved by clear and convincing evidence

that Respondent violated section 550.2415(1)(a) on 18 occasions

in six separate races from September 3 to 1 7, 201 6 , as alleged

in the Administrative Complaint.

Penalty

42. Section 5 50.2415(3)(a) provided , in part :

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 in an

amount not exce eding the purse or

sweepstakes earned by the animal in the race

at issue or $10,000, whichever is greater;

require the full or partial return of the

purse, sweepstakes, and trophy of the race

at issue; or impose against the violator any

combination of such penalties.

43. Section 550.2415(7) (c) provided , in part:

The division rules must include a

classification system for drugs and

substances and a corresponding penalty

schedule for violations which incorporates

the Uniform Classification Guidelines for

Fo reign Substances, Version 8.0, revised

December 2014, by the Association of Racing

Commissioners International, Inc.

4 4 . Florida Administrative C ode R ule 61D - 6.01 2 (2)( b )

provide d that for a c lass II impermissible substance under the

incorporated Uniform Classification Guidelines for Foreign

Substances, the penalty schedule would be:

First violation of this chapter -- $ 10 0 to

$ 1 , 000 fine and suspension of license zero

to 30 days ;

Second violation of this chapter -- $ 2 50 to

$ 1 , 0 0 0 fine and suspension of license of no

less than 30 days, or revocation of license;

Third violation or any subsequent violation

of this chapter -- $5 00 to $ 1 ,000 fine and

suspension of license of no less than

60 days , or revocation of license.

4 5 . Rule 61D - 6.01 2 (2)(c) provide d that for a c lass III

substance, the penalty schedule would be:

First violation of this chapter -- $ 5 0 to

$500 fine;

Second violation of this chapter -- $ 15 0 to

$750 fine and suspension of license zero to

30 days;

Third violation or any subsequent violation

of this chapter -- $ 2 50 to $1,000 fine and

suspension of license zero to 60 days.

4 6 . Rule 61D - 6.01 2 (2)( d ) provide d that for a Class I V

substance, the penalty schedule would be:

First violation of this chapter -- $ 5 0 to

$ 250 fine;

Second violation of this chapter -- $ 10 0 to

$ 50 0 fine;

Third or subsequent violation of this

chapter -- $ 2 0 0 to $1,000 fine and

suspension of license zero to 3 0 days.

4 7 . Rule 61D - 2.021, entitled Aggravati ng and Mitigating

Circumstances, provide d :

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.

4 8 . The racing of an animal with a restricted drug

negativ ely impacts the integrity of the pari - mutuel industry and

is a danger to the racing greyhounds.

4 9 . On the other hand, n o evidence of prior discipline was

introduced . Respondent has been licensed for a long time.

50 . Although six separate races were involved, they were

close together in time . B ecause Respondent was unaware of any

positive test results before all of the races had been run , he

had no opportunity to increase security, alter routines, or

adjust medication s .

5 1 . Ms. Wilding testified that the theobromine and

theophylline detected in each sample actually " can be

metabolites " of caffeine . In a criminal context, if in fact

only caffeine were administered, one might argue that conviction

on separate charges for three distinct acts was not even

constitutionally permissible, because there w ould be only a

single criminal episode or transaction. See , e.g. , Lee v.

State , 42 Fla. L. Weekly D1273 (Fla. 1st DCA June 1,

2017)(double jeopardy prohibit s multiple convictions or

punishments for a single criminal offense). While a license

disciplinary proceeding almost never implicat es the double

jeopardy clause, 5 / th e absence of clear evidence that two of the

restricted drugs in each sample were not meta bolites of the

third s hould mitigat e the penalty whe n the presence of each drug

formed the basis of a separate count .

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 - Mutuel Wagering, enter

a final order : finding Robert G. Dawson guilty of 18 counts of

violating section 550.2415(1)(a), Florida Statutes , and Florida

Administrative Code Rule 61D - 6.0 0 2(1) ; imposing an

administrative fine of $ 3 , 0 00 ; and suspending his license for

six months .

DONE AND ENTERED this 26th day of July , 2016 , 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 26th day of July , 2017 .

ENDNOTES

1/ Except as otherwise indicated, statutory references in this

Recommended Order are to the 201 6 Florida Statutes , the text of

which remained unchanged throughout the time the violations

allegedly occurred .

2/ Except as otherwise indicated, references to Florida

Administrative Code rules are to those in effect at the time the

alleged violations occurred, from September 3 through 17, 2016.

3 / It was not e xactly clear who constituted this " we , " but

presumably it was a group of kennel owners.

4 / Al though Respondent ' s Amended Answer and Affirmative Defenses

to the Administrative Complaint initially suggested there was an

insufficient link between Respondent and the samples , Respondent

present ed n o evidence at hearing challenging the chain of

custody or even suggesting that there was a probability of

tampering so as to require Petitioner to prove that tampering

did not occur. State v. Jones , 30 So. 3d 619, 622 (Fla. 2d DCA

2010)(burden shifts to t he proponent of the evidence to submit

evidence that tampering did not occur once movant demonstrates

the probability of tampering ) . A ffirmative defenses were not

pursued at hearing and were abandoned.

5 / See N. Hill Manor, Inc. v. Ag . for Health Care Admin. ,

881 So. 2d 1174, 1177 n.3 (Fla. 1st DCA 2004)(double jeopardy

does not apply to limit sanctions in civil cases unless in an

individual case the sanction is " so disproportionate to the

government ' s damages that it serves the goal of punishment " )

(quoting State v. Knowles , 625 So. 2d 88, 91 (Fla. 5th DCA

1993)) .

COPIES FURNISHED:

Charles LaRay Dewrell, Jr., Esquire

Joseph Yauger Whealdon, III, Esquire

Department of Business and

Professional Regulation

Division of Pari - mutuel Wagering

2601 Blair Stone Road

Tallahassee, Florida 32399

(eServed)

Robert Glenn Dawson

21 Horicon Court

Royal Palm Beach, Florida 33411

(eServed)

Tony Glover , Director

Division of Pari - Mutuel Wagering

Department of Business and

Professional Regulation

Capital Co mmerce Center

2601 Blair Stone Road

Tallahassee, Florida 32399

(eServed)

Jason Maine, General Counsel

Department of Business and

Professional Regulation

Capital Commerce Center

2601 Blair Stone Road

Tallahassee, Florida 32399 - 2202

(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 thi s case.