17-004870PL Department Of Business And Professional Regulation, Division Of Pari-Mutuel Wagering vs. Areci Robledo
 Status: Closed
Recommended Order on Wednesday, December 27, 2017.


View Dockets  
Summary: Petitioner proved, by clear and convincing evidence, that Respondent committed seven violations of section 550.2415 by impermissibly medicating or administering prohibited substances to racing greyhounds. Recommend fine and license supension.

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8DEPARTMENT OF BUSINESS AND

12PROFESSIONAL REGULATION,

14DIVISION OF PARI - MUTUEL

19WAGERING,

20Petitioner,

21vs. Case Nos. 17 - 4870PL

2717 - 4871PL

30ARECI ROBLEDO, 17 - 4872PL

3517 - 4873PL

38Respondent.

39_______________________________/

40RECOMMENDED ORDER

42A hearing was conducted in this case pursuant to

51sections 120.569 and 120.57(1), Florida Statutes (201 7 ), before

61Cathy M. Sellers, an Administrative Law Judge ("AL J") of the

74Division of Administrative Hearings ("DOAH"), on October 23,

842017 , by video teleconference at sites in West Palm Beach and

95Tallahassee, Florida.

97APPEARANCES

98For Petitioner: J oseph Yauger Whealdon, III, Esquire

106James A. Lewis, Esquire

110Department of Business and

114Professional Regulation

116Division of Pari - mutuel Wagering

1222601 Blair Stone Road

126Tallahassee, Florida 32399

129For Respondent: Areci Robledo , pro se

1351470 Haverhill Road South

139West Palm Beach, Florida 3341 5

145STATEMENT OF THE ISSUE S

150Whether Respondent raced animal s that were impermissibly

158medicated or determined to have prohibited substance s present,

167resulting in a positive test for such medication s or substances

178in violation of section 550.2415(1)(a), Florida Statutes

185(201 6 ) , 1/ as alleged in the a dministrative co mplaint s ; an d , if

201so, the penalty that should be imposed .

209PRELIMINARY STATEMENT

211Petitioner, Department of Business and Professional

217Regulation, Division of Pari - Mutuel Wagering ( " Petitioner " ),

227served four a dministrative c omplaint s on Respondent , Areci

237Robledo ("Respondent") , charging her with a total of seven

248counts of violati ng statutes and rules governing pari - mutuel

259racing by impermissibly medicating or administering prohibited

266substances to racing greyhounds for which she was the trainer of

277r ecord for races held at the Palm Beach Kennel Club ("PBKC") on

292specific dates between September 27, 2016 , and January 28, 2017.

302R espondent disputed the material facts alleged in the

311administrative complaint s and timely requested an administrative

319hearing . On August 28, 2017 , t he case was forwarded to DOAH for

333assignment of an ALJ to conduct a hearing pursuant to sections

344120.569 and 120.57(1). T he administrative complaints were

352consolidated for purposes of conducting the final hearing and

361issuing the re commended order. The final hearing was held on

372October 23 and 24, 2017.

377Petit ioner presented the testimony of Ms. Jessica

385Zimmerman, a chief veterinary assistant employed by Petitioner;

393Ms. Margaret Wilding, a ssociate d irector of the University of

404Florida Racing Laboratory ; and Respondent . Petitioner offered

412E xhibits P - 1 through P - 2 4 , which were admitted into evidence

427without objection. O fficial recognition was taken of

435section 550 .2415 and Florida Administrative Code Rules 61D -

4456.002, 61D - 6.007, and 61D - 6.012.

453Respondent testified 2/ on her own behalf and presented the

463testimony of Ms. Jamie Testa, a n employee of another kennel that

475races greyhounds at PBKC; and Mr. Arthur Agganis , the owner of

486another kennel that races greyhounds at PBKC . Respondent

495offered a late - filed composite exhibit consisting of several

505photographs for admission into evidence; this exhibit was marked

514as Respondent's Exhibit 1 and admitted into evidence over

523objection. 3 /

526Volume I of the final hearing Transcript was filed at DOA H

538on November 28, 2017, and Volume II was filed on December 8,

5502017. 4/ By the Notice of Filing Transcript issued on

560November 28, 2017, t he parties were given until December 8,

5712017, to file their proposed recommended orders . On October 30,

5822017, Respondent filed, along with her late - filed exhibit , a

593letter stating her position on the charges against her ; this

603l etter was treated as her p roposed r ecommended o rder.

615Petitioner ' s Proposed Recommended Order was timely filed on

625December 8, 2017. Both proposed recommended orders were duly

634considered in preparing this Recommended Order .

641FINDINGS OF FACT

644I. The Parties

6471. Petitioner is the state agency charged with regulating

656pari - mutuel wagering in the s tate of Florida purs uant to

669chapter 550 .

6722 . Respondent is the holder of Pari - Mutuel Wagering

683Individual Occupational License No. 1572955 - 1021, which

691authoriz es her to train greyhounds in Florida pursuant to

701s ection 550.105. Respondent has been licensed by Petitioner

710since 2009.

7123 . At all times relevant to the charges at issue in th e s e

728proceeding s , Respondent was subject to chapter 550 and the

738implementing rules codified in Florida Administrative Code

745C hapter 61D - 6 .

751II. T he Administrative Complaints

7564. As noted above, Petitioner served Respondent with four

765administrative complaints charging her with a total of seven

774counts of violati ng statutes and rules governing pari - mutuel

785racing by impermissibly medicating or administering prohibited

792substances to racing greyhounds for which she was the trainer of

803record for races held at the PBKC on specific da t es between

816September 27, 2016 , and January 28, 2017.

823A. DOAH Case No. 17 - 4870

8305. On Nove mber 28, 2016, Petitione r filed with its clerk's

842office an a dministrative c omplaint consisting of two enforcement

852cases, DBPR Case Nos. 2016 - 049902 and 2016 - 051419 . T his

866administrative complaint was assigned DOAH Case No. 17 - 4870.

8766. Count I of this administrative complaint, DBPR Case

885No. 2016 - 049902, charg es Respondent with having violated

895section 550.2415(1)(a) by racing greyhound ATASCOCITA ACURA ,

902which was impermissibly medicated or determined to have a

911prohibited substance present resulting in a positive test for

920dimethyl sulfoxide.

9227. Count II of this administrative complaint, DBPR Case

931No. 2016 - 051419, charge s Responde nt with having violated

942sect ion 550.2415(1)(a) by racing greyhound ATASCOCITA DALT ,

950which was i mpermissibly medicated or determined to hav e a

961prohibited substance present resulting in a positive test for

970caffeine.

971B. DOAH Case No. 17 - 4871

9788 . On November 30, 2016, Petitioner filed with its clerk's

989office an a dministrative c omplaint consisting of two enforcement

999cases, DBPR Case Nos. 2016 - 0 53062 and 2016 - 0 53069 . This

1014administrative complaint was assigned DOAH Case No. 17 - 487 1 .

10269. Count I of this administrative complaint, DBPR Case

1035No. 2016 - 0 53062 , charge s Respondent with having violated section

1047550.2415(1)(a) by racing greyhound ATASCOCITA EDGE , which was

1055impermissibly medicated or determined to have a prohibited

1063substance present resulting in a positive test for the obromine .

107410. Count II of this administrative complaint, also part

1083of DBPR Case No. 2016 - 05 3062 , charge s Respondent with having

1096violated section 550.2415(1)(a) by racing greyhound ATASCOCITA

1103EDGE , which was impermissibly medicated or determined to hav e a

1114prohibited substance present resulting in a positive test for

1123theo phylline .

112611. Count III of this administrative complaint, DBPR Case

1135No. 2016 - 05306 9 , charged Respondent with having violated

1145section 550 .2415(1)(a) by racing greyhound ATASCOCITA DALT ,

1153which was impermissibly medicated or determined to hav e a

1163prohibited substance present resulting in a positive test for

1172theo bromine .

1175C. DOAH Case No. 17 - 4872

118212. On December 28 , 2016, Petitioner filed w ith its

1192clerk's office an administrative complaint consisting of one

1200enforcement case, DBPR Case No . 2016 - 056707 . This

1211administrative complaint was assigned DOAH Case No. 17 - 487 2 .

122313 . In this administrative complaint, Petitioner has

1231charge d Respondent with having violated section 550.2415(1)(a)

1239by racing greyhound RCK MOHICAN , which was impermissibly

1247medicated or determined to a prohibited substance present

1255resulting in a positive test for caffeine .

1263D. DOAH Case No. 17 - 487 3

127114. On Februar y 16, 2017, Petitioner filed with its

1281clerk's office an administrative complaint consisting of

1288one enforcement case, DBPR Case No. 2017 - 006845. This

1298administrative complaint was a ssigned DOAH Case No. 17 - 4873.

130915. In this administrative complaint, Petit ioner has

1317charged Respondent with having violated section 550.2415(1)(a)

1324by racing greyhound ATASCOCITA HAPPY , which was impermissibly

1332medicated or determined to hav e a prohibited substance present

1342resulting in a positive test for caffeine .

1350I II. The Alle ged Violations and Respondent's Defenses

1359A. Racing Greyhound Urine Sample Collection and Testing

136716 . PBKC is a facility operated by a permit holder

1378authorized to conduct pari - mutuel wagering in Florida under

1388c hapter 550.

139117 . Respondent trained and raced greyhounds at PBKC

1400between September 27, 2016 , and January 28, 2017, the time

1410period relevant to these consolidated proceedings . All

1418violations charged in the administrative complaints are alleged

1426to have occurred at PBKC.

143118 . To enfo rce the statutes and rules prohibiting the

1442impermissible medication or administration of prohibited

1448substances to racing greyhounds, Petitioner collects urine

1455samples from racing greyhounds immediately before races in which

1464they are participating. At the PBKC, urine samples from racing

1474greyhounds are collected in a restricted area called the "ginny

1484pit."

148519. Jessica Zimmerman, chief veterinary assistant for

1492Petitioner, describ ed Petitioner's urine sampling process. The

1500samples are collected by veterinary assistants using clean cups

1509that are unsealed immediately before being used to collect the

1519samples. When each urine sample is collected, the veterinary

1528assistant checks the i dentification number tattooed on the

1537greyhound 's ear and completes a PMW 503 f orm . 5/

154920 . Here, the evidence establishe s that the urine samples

1560collected that have given rise to this proceeding were collected

1570pursuant to this process . 6/

157621 . T he PMW 503 f orm shows the pari - mutuel wagering

1590facility for which it was prepared ÏÏ in these consolidated cases,

1601for the PBKC ÏÏ and lists the date, race , and post number of the

1615greyhound; the greyhound's name and tattoo number ; the time the

1625sample was collected ; the trainer's name ; the collector's

1633initials ; and a unique sample number.

163922 . Here, t he completed PMW 503 f orms and other evidence

1652e stablish ed that Respondent was the trainer of record for the

1664following grey hounds that participated in specified races held

1673on specific dates and from which urine samples were taken :

1684* ATASCOCITA ACURA , tattoo no. 6328024 A , urine specimen

1693no. 10 5889 , twelfth race on September 27, 2016 ;

1702* ATASCOCITA DALT, tattoo no. 6407364C, urine specimen

1710no. 108583, second race on October 15, 2016;

1718* ATASCOCITA EDGE, tattoo no. 65280114G, urine specimen

1726no. 108633, ninth race on October 19, 2016;

1734* ATASCOCITA DALT, tattoo no. 6407364C, urine specimen

1742no. 108304, tenth race on October 19, 2016;

1750* RCK MOHICAN, tattoo no. 6 5 640124A, urine specimen

1760no. 113568, eighth race on November 26, 2016;

1768* ATASCOCITA HAPPY, tattoo no. 65573124 J , urine specimen

1777no. 125184, ninth race on January 28, 2017.

178523 . Once a urine sample has been collected, the container

1796is sealed with tape to maintain the integrity of the sample , and

1808a tag on which the sample number is written is attached to the

1821container holding the collected urine sample . 7/

182924 . The urine samples are placed in a freezer at a

1841restricted area at Petitioner's office and held there until they

1851are shipped to the University of Florida Racing Laboratory ("UF

1862L ab ") 8 / for testing for the presence of impermissible medications

1875or prohibited substances. Petitioner is in constant possession

1883of the s amples until t hey are shipped to the UF Lab. T he

1898containers in which the samples are shipped are securely locked.

190825 . Here, the evidence established that urine specimen

1917nos. 105889, 108583, 108633, 108304, 113568, and 125184 were

1926collected, sealed, stor ed, and shipped to the UF Lab pursuant to

1938the above - described protocol.

194326 . Once the samples are received at the UF Lab,

1954laboratory staff inspect the samples to ensure that the evidence

1964tape has adhered to the sample cup , cross - check the sample

1976numbers with those on the accompanying PMW 503 f orm , identify

1987any discrepancies with respect to date and sample number and

1997record them on a discrepancy form, 9 / and log the samples into the

2011Laboratory Information Management System. T hereafter, the

2018samples are assigned an internal alphanumeric number and moved

2027into a limited - access area, where they are stored while

2038laboratory staff perform testing. The samples are stored in

2047this area until they either are confirmed as positive for a n

2059impermissible medication or a prohibited substance ÏÏ in which

2068case they are moved to a specific freezer for storage ÏÏ or

2080confirmed as negative for a medication or prohibited substance

2089and thereafter dis carded .

209427 . As part of the sample testing process, an aliquot is

2106taken and tested for an impermissible medication or a prohibited

2116substance. If the test initially indicates a positive result

2125for a n impermissible medication or a prohibited substance, a

2135confirmatory test is performed to determine the quantity of the

2145medication or substance in the sample. The confirmatory testing

2154process entails running calibrated samples, positive controls to

2162ensure that the extraction process was accurate, and negative

2171controls to ensure that there is no carryover of the medication

2182or substance through the confirmatory testing process. If the

2191confirmatory testing process yields a positive result for a n

2201impermissible medication or prohibited substance, the

2207documentation is subjected to a two - step supervisory review ,

2217followed by generation of a Report of Positive Result , which is

2228transmitted to Petitioner.

223128 . Here, the evidence establishe s that urine specimen

2241nos. 105889, 108583, 108633, 108304, 113568, and 125184 were

2250logged, stored, and tested at the UF Lab pursuant to this

2261protocol.

226229 . The Association of Racing Commissioners International

2270has adopted the Uniform Classification Guidelines for Foreign

2278Substances ("ARCI Guidelines"). Classes range from class I

2288drugs , which are stimulants without therapeutic value and are

2297most likely to affect the outcome of a race, to class V drugs,

2310which have the most therapeutic value and the least potential to

2321affect the outcome of a race.

232730 . C affeine is a central nervous system stimulant and

2338class II drug . Under rule 61D - 6.007(3) (a) , levels of caffeine

2351at a urinary concentration less than or equal to 200 nanograms

2362per milliliter are not reported to Petitioner as an

2371impermissible medication or prohibited su bstance. Conversely,

2378levels of caffeine at a urinary concentration greater than

2387200 nanograms per milliliter are reported to Petitioner as a n

2398impermissible medication or prohibited substance.

240331 . Theo bromine is a diuretic , smooth muscle relaxant , and

2414class IV drug . Under rule 61D - 6.007(3)(b), levels of

2425theobromine at urinary concentrations less than or equal to

2434400 nanograms per milliliter are not reported to Petitioner as

2444an impermissible medication or prohibited substance.

2450Conversely, levels of t heo bromine at urinary concentrations

2459greater than 400 nanograms per milliliter are reported to

2468Petitioner as a n impermissible medication or prohibited

2476substance.

247732 . T heophylline is a bronchodilator , smooth muscle

2486relaxant , and class III drug . Under rule 61D - 6.007(3)(b),

2497levels of theo phylline at urinary concentrations less than or

2507equal to 400 nanograms per milliliter are not reported to

2517Petitioner as an impermissible medication or a prohibited

2525substance. Conversely, levels of theophylline at urinar y

2533concentrations greater than 400 nanograms per milliliter are

2541reported to Petitioner as a n impermissible medication or a

2551prohibited substance.

255333 . D imethyl sulfoxide is an anti - inflammatory agent and

2565class IV drug. Dimethyl sulfoxide is a non - threshold drug,

2576which means that it is not permitted to be in a racing

2588greyhound's body at any concentration. Therefore, the detection

2596of any concentration of dimethyl sulfoxide in a urine sample is

2607reported to Petitioner as a n impermissible medication or a

2617prohibi ted substance.

262034 . Pursuant to section 550.2415(1)(c), the finding of a

2630prohibited substance in a race - day specimen taken from a racing

2642greyhound constitutes prima facie evidence that the substance

2650was administered and was carried in the body of the anima l while

2663participating in the race .

2668B. Urine Specimen Test Results

2673Urine Specimen No. 105889 - ATASCOCITA ACURA

268035 . As noted above, urine specimen no. 105889 was

2690collected by Petitioner's veterinary assistant from ATASCOCITA

2697ACURA, tattoo no. 6328 0 24A , before the twelfth race on

2708September 27, 2016.

271136 . UF Lab g as chromatography - mass spectrometry testing of

2723urine specimen no. 10 5 889 showed a urine concentration of

2734210 micrograms per milliliter of dimethyl sulfoxide.

274137 . The UF Lab prepared and transmitted to Petitioner a

2752Report of Positive Result dated October 27, 2016, reporting this

2762test result for urine specimen no. 105889.

276938 . As discussed above, dimethyl sulfoxide is a no n -

2781threshold drug. Accordingly, the finding of 210 micrograms per

2790mi lliliter of dimethyl sulfoxide in urine specimen no. 105889

2800establish es that ATASCOCITA ACURA carried a n impermissible

2809medication or a prohibited substance in its body during the

2819twelfth race on September 27, 2016.

2825Urine Specimen No. 108583 Î ATASCOCITA DA LT

283339 . As noted above, urine specimen no. 108583 was

2843collected by Petitioner's veterinary assistant from ATASCOCITA

2850DALT, tattoo no. 6407364C , before the second race on October 15 ,

28612016.

286240 . UF Lab liquid chromatography - mass spectrometry testing

2872of urine specimen no. 10 8583 showed a urine concentration of

28834.343 - 0.03 micrograms per milliliter of caffeine .

289241 . UF Lab liquid chromatography - mass spectrometry testing

2902of urine specimen no. 10 8583 showed a urine concentration of

2913728 - 90 nano grams per milliliter of theobromine .

292342 . UF Lab liquid chromatography - mass spectrometry testing

2933of urine specimen no. 10 8583 showed a urine concentration of

29441.578 - 0.08 micrograms per milliliter of theo phylline .

295443 . These concentrations exceed the non - reportable levels

2964for each of these substances established in rule 61D - 6.007(3).

297544 . The UF Lab prepared and transmitted to Petitioner a

2986Report of Positive Result dated October 27, 2016, reporting

2995th e s e test result s for urine specimen no. 10 8583 .

300945 . T he finding s of urine concentration s of 4.343 - 0.03

3023micrograms per milliliter of caffeine , 728 - 90 nanograms per

3033milliliter of theobromine, and 1.578 - 0.08 mic r ograms per

3044milliliter of theophylline establish that ATASCOCITA DALT

3051carried these impermissible medications or p rohibited substance s

3060in its body during the second race on October 15 , 2016.

307146 . N otwithstanding that the test results for urine

3081specimen no. 108583 showed t he presence of theobromine and

3091theophylline in ATASCOCITA DALT duri ng the second race on

3101October 15, 2016, at concentrations above the non - reportable

3111levels established in rule 61D - 6.007(3), Petitioner has not

3121charged Respondent with violations related to the presence of

3130these substances, and has only charged Respondent w ith one

3140violation for the presence of caffeine above the non - reportable

3151level during the second race on October 15, 2016.

3160Urine Specimen No. 108633 Î ATASCOCITA EDGE

316747 . As noted above, urine specimen no. 108633 was

3177collected by Petitioner's veterinar y assistant from ATASCOCITA

3185EDGE, tattoo no. 65280114G , before the ninth race on October 1 9 ,

31972016.

319848 . UF Lab liquid chromatography - mass spectrometry testing

3208of urine specimen no. 108 633 showed a urine concentration of

32198 22 - 90 nanograms per millilite r of theobromine.

322949 . UF Lab liquid chromatography - mass spectrometry testing

3239of urine specimen no. 108633 showed a urine concentration of

3249625 - 80 nanograms per milliliter of theophylline.

325750. These concentrations exceed the non - reportable levels

3266for each of these medications or substances established in

3275rule 61D - 6.007(3).

327951. The UF Lab prepared and transmitted to Petitioner a

3289Report of Positive Result dated November 17 , 2016, reporting

3298thes e test results for urine specimen no. 108633 .

330852 . The findings of urine concentrations of 822 - 90

3319nanograms per milliliter of theobromine and 625 - 80 nanograms

3329per milliliter of theophylline establish that ATASCOCITA EDGE

3337carried these impermissibl e medications or prohibited substance s

3346in its body during the ninth race on October 1 9 , 2016.

3358Urine Specimen No. 108304 Î ATASCOCITA DALT

33655 3 . As noted above, urine specimen no. 108304 was

3376collected by Petitioner's veterinary assistant from ATASCOCITA

3383D ALT, tattoo no. 6407364C , before the tenth race on October 19,

33952016.

339654. UF Lab liquid chromatography - mass spectrometry testing

3405of urine specimen no. 108304 showed a urine concentration of

3415534 - 90 nanograms per milliliter of theobromine.

342355 . Th is concentration exceed s the non - reportable level

3435for this sub stance established in rule 61D - 6.007(3).

34455 6 . The UF Lab prepared and transmitted to Petitioner a

3457Report of Positive Result dated November 17, 2016, reporting

3466th is test result for urine specimen no. 108 304 .

34775 7 . The finding of a urine concentration of 534 -

348990 nanograms per milliliter of theobromine establish es that

3498ATASCOCITA DALT carried this impermissible medication or

3505prohibited substance in its body during the tenth race on

3515October 19, 2016 .

3519Urine Specimen No. 113568 Î RCK MOHICAN

352658. As noted above, urine specimen no. 113568 was

3535collected by Petitioner's veterinary assistant from RCK MOHICAN,

3543tattoo no. 65640124A , before the eighth race on November 26 ,

355320 16.

355559 . UF Lab liquid chromatography - mass spectrometry testing

3565of urine specimen no. 113568 showed a urine concentration of

35758.532 - 0.03 micrograms per milliliter of caffeine .

358460. UF Lab liquid chromatography - mass spectrometry testing

3593of urine specim en no. 113568 showed a urine concentration of

36043.434 - 0.09 micro grams per milliliter of theobromine.

361361 . UF Lab liquid chromatography - mass spectrometry testing

3623of urine specimen no. 1 13568 showed a urine concentration of

36348.374 - 0.08 micrograms per milliliter of theophylline.

364262 . These concentrations exceed the non - reportable levels

3652for each of these medications or substances established in

3661rule 61D - 6.007(3).

366563 . The UF Lab prepared and transmitted to Petitioner a

3676Report of Positive Result dated December 13, 2016, reporting

3685these test results for urine specimen no. 113568 .

369464 . The findings of 8.532 - 0.03 micrograms per

3704milliliter of caffeine , 3.434 - 0.09 micrograms per milliliter

3713of theobromine , and 8.374 - 0.08 micrograms per millilite r of

3724theophylline establish that RCK MOHICAN carried these

3731impermissible medications or prohibited substance s in its body

3740during the eighth race on November 26 , 2016.

374865 . N otwithstanding that the test results for urine

3758specimen no. 113568 showed the pre sence of theobromine and

3768theophylline in RCK MOHICAN during the eighth race on

3777November 26, 2016, at concentrations above the non - reportable

3787levels established in rule 61D - 6.007(3), Petitioner has not

3797charged Respondent with violations related to the prese nce of

3807these medications or substances, and has only charged Respondent

3816with one violation for the presence of caffeine above the non -

3828reportable level during the eighth race on November 26, 2016.

3838Urine Specimen No. 125184 Î ATASCOCITA HAPPY

384566. As noted above, urine specimen no. 125184 was

3854collected by Petitioner's veterinary assistant from ATASCOCITA

3861HAPPY , tattoo no. 655731245 , before the ninth race on

3870January 28, 2017.

387367 . UF Lab liquid chromatography - mass spectrometry testing

3883of urine specimen no. 1 25184 showed a urine concentration

3893greater than 1.25 micrograms per milliliter of caffeine.

39016 8 . UF Lab liquid chromatography - mass spectrometry testing

3912of urine specimen no. 125184 showed a urine concentration of

3922988 - 90 nanograms per milliliter of theobromine.

39306 9 . UF Lab liquid chromatography - mass spectrometry testing

3941of urine specimen no. 1 2 5 184 showed a urine concentration of

39542.129 - 0.08 micrograms per milliliter of theophylline.

396270 . These concentrations exceed the non - reportable levels

3972for each of these substances established in rule 61D - 6.007(3).

398371 . The UF Lab prepared and transmitted to Petitioner a

3994Report of Positive Result dated February 10, 2017, reporting

4003these test results for urine specimen no. 125184 .

401272 . The findings of urine concentrations of greater than

40221.25 micrograms per milliliter of caffeine, 988 - 90 nanograms

4032per milliliter of theobromine, and 2.129 - 0.08 micrograms per

4042milliliter of theophylline establish that ATASCOCITA HAPPY

4049carried these impermissible medicat ions or prohibited substance s

4058in its body during the ninth race on January 28, 2017.

406973. Again , it is noted that notwithstanding that the test

4079results for urine specimen no. 12 5 184 showed the presence of

4091theobromine and theophylline in ATASCOCITA HAPPY during the

4099ninth race on January 28, 2017, at concentrations above the non -

4111reportable levels established in rule 61D - 6.007(3), Petitioner

4120has not charged Respondent with violations related to the

4129presence of these medications or substances, and has only

4138c harged Respondent with one violation for the presence of

4148caffeine above the non - reportable level during the ninth race on

4160January 28, 2017 .

4164C. Respondent's Defenses

416774. Respondent denied having administered any

4173impermissible medications or prohibited su bstances to the racing

4182greyhounds that are the subject of these proceeding s .

419275. Respondent also questioned , on three grounds, the

4200accuracy of the test results showing the presence of

4209impermissible medications or prohibited substances in the

4216greyhounds that are the subject of th e s e proceeding s .

422976. First, Respondent dispute s whether the urine specimens

4238that yielded the positive test results were taken from the

4248greyhounds that are the subject of these proceedings . S he noted

4260that under Petitioner's pre vious practice, when a urine sample

4270was taken from a dog, the trainer was able to be present to

4283verify that the animal from which the sample was collected was

4294trained by him or her. She testified that now, under

4304Petitioner's current sampling practice, the trainer is not able

4313to be present so cannot verify the identity of the animal from

4325which the sample is taken .

433177. This argument is not persuasive . 10 / As previously

4342discussed, Zimmerman described the process by which urine

4350samples are collected from ra cing greyhounds for prohibited

4359substances testing. As part of the urine sampling protocol, the

4369identity of the greyhound from which the sample is collected is

4380determined pursuant to an identification number tattooed on the

4389dog's ear and that identification number is recorded both on the

4400PMW 503 form and on the urine sample card that is transmitted to

4413the UF Lab for testing. As previously noted, t he evidence shows

4425that this protocol was followed in collecting urine samples from

4435the racing greyhounds that are t he subject of these proceedings .

4447Apart from mere conjecture, 11 / Respondent did not present any

4458evidence to show that the urine specimens for which positive

4468test results were obtained were not collected from the

4477greyhounds specificall y identified herein , on the dates and at

4487the times pertinent to these proceedings .

44947 8 . Respondent presented evidence to show that conditions

4504at the PBKC made it possible for racing greyhounds to ingest

4515foods and beverages that could cause urine specim ens from those

4526animals to test positive for impermissible medications or

4534prohibited substances.

45367 9 . Specifically , Respondent testified that foods, such as

4546chocolate, and beverages , such as coffee, sodas, and Red Bull,

4556are available to purchase at the PBKC ; that PBKC personnel

4566consume these foods and beverages at many locations within the

4576facility ; that these foods and beverages are often left

4585unattended in areas where they are acces sible to the racing

4596greyhounds ; and that the greyhounds sometimes consume these

4604foods and beverages.

460780 . Jamie Testa corroborated Respondent's testimony . She

4616echoed that PBKC personnel consume food and beverages in the

4626PBKC facility and leave unfinishe d food and beverages in various

4637locations , including in the weigh - in area, that are accessible

4648to the greyhounds. Sh e recounted one occasion on which she

4659observed a veterinarian at the PBKC spill coffee and not clean

4670up the spill, leaving it accessible fo r consumption by

4680greyhounds . She described the se conditions at PBKC as pervasive

4691and continuing. In her words, "it's not just from one day.

4702It's every day."

470581. On cross - examination, Testa acknowledged that

4713greyhounds are muzzled during the weigh - in process , although she

4724nonetheless asserted that this "doesn't mean that the dogs

4733cannot pick up anything that's on the ground." However, she

4743conceded that she did not witness the greyhounds tha t are the

4755subject of these proceedings consuming food or beverage s during

4765the weigh - in or at any other times on the dates and at the times

4781relevant to these proceedings.

47858 2 . Arthur Ag g anis also corroborated Respondent's

4795testimony that PBKC personnel of ten consume food and beverages

4805in close proximity to the racing greyhounds , and that food and

4816coffee is sometimes spilled on the ground . Agganis testified

4826that on one occasion he observed a greyhound eat food off of the

4839ground.

484083. On cross - examination, Agganis acknowledged that he did

4850not witness any food or spilled coffee at the PBKC on the dates

4863relevant to these proceedings.

48678 4 . Respondent also presented an exhibit consisting of

4877eight photographs ostensibly taken inside the PBKC . 12 / The

4888photographs depict vending machines from which chocolate bars

4896and other snacks and sodas can be purchased, employees eating

4906food , and unattended soda containers and beverage cups placed on

4916tables and on the floor.

49218 5 . On cross - examination, Respondent a cknowledged that she

4933took some, but not all, of the photographs, and some of the

4945photographs were provided to her by other persons. She did not

4956identify which photographs she took and which were provided to

4966her by other persons. S he also did not identify the specific

4978location s with in the PBKC facility in which the photographs

4989ostensibly were taken ; she did not identify the persons who took

5000the photographs; and she did not present any testimony by these

5011persons to establish that the photographs were , in fa ct, taken

5022in the PBKC or that they accurately depict conditions within the

5033PBKC. She also did not present any evidence establishing that

5043the photographs were taken on the dates and at the times when

5055the greyhounds that are the subject of these proceedings raced .

5066In fact, she acknowledged that none of the photographs were

5076taken on those dates , but instead were taken during a timeframe

5087spanning from three months to one week before the final hearing .

50998 6 . Respondent's argument that the positive test results

5109are due to the greyhounds that are the subject of these

5120proceedings having ingested foods or beverages at the PBKC

5129rather than having been purposely administered those substances ,

5137is unpersuasive .

514087. Respondent did not present any evidence to show that

5150the conditions described in Testa's and Agganis' testimony or

5159portrayed in the photographs accurately depicted the conditions

5167present at the PBKC on the specific dates and at the specific

5179times during which the greyhounds that are the subject of these

5190pro ceedings raced .

519488. Most important, even if the evidence showed that these

5204conditions existed at the PBKC on the dates and at the times the

5217greyhounds that are the subject of these proceedings raced, no

5227evidence was presented showing that the greyhound s actually

5236ingested anyt hing at the PBKC that may have caused the positive

5248test results. To the contrary, Respondent, Testa, and Agganis

5257all acknowledged that they did not witness the gre yhounds that

5268are the subject of these proceedings ingest any foods o r

5279beverages at the PBKC on the dates and at the times pertinent to

5292these proceedings.

529489. Respondent also argue s that the urine samples taken

5304from the greyhounds that are the subject of these proceedings

5314could have been collected in contaminated containe rs, resulting

5323in false positive test results for impermissible medications or

5332prohibited substances. Specifically, Respondent testified: " I

5338was able to see two people, like the females from the State, the

5351ones who do ÏÏ who collect the urine with their coffee cup."

536390. Testa also testified that on occasion, she observed

5372veterinary assistants collecting urine samples by placing a

5380urine sampl e collection cup on the sand in the ginny pit, which

5393could cause cross - contamination of the urine sample .

54039 1 . Respondent's testimony that she observed Petitioner's

5412veterinary assistants collect urine samples from greyhounds

5419using coffee cups is neither credible nor persuasive. In fact,

5429Respondent herself testified that trainers do not have access to

5439the ginny pit, so are unable to observe the urine collection

5450process. These contradictions render Respondent's testimony

5456incredible.

545792. Further , ther e is no evidence showing that

5466Petitioner's veterinary assistants placed the urine collection

5473cups on the sand in the ginny pit when collecting urine samples

5485from the greyhounds that are the subject of the proceedings on

5496the pertinent dates and at the perti nent time s.

55069 3 . Rather, t he evidence establishes that Petitioner 's

5517veterinary assistants consistently follow an established

5523protocol in collect ing urine specimens for testing , which

5532includes using clean, sealed cups that are unsealed immediately

5541before the sample is collected , and then resealed with evidence

5551tape and tag ged with the sample number . The credible,

5562persuasive evidence shows that Petitioner's veterinary

5568assistants followed this protocol in collect ing the urine

5577samples from the greyhounds th at are the subject of this

5588proceeding on the dates and at the times pertinent to these

5599proceeding s . There is no credible, persuasive evidence showing

5609that this protocol was not followed by Petitioner's veterinary

5618assistants in collecting the urine samples from the greyhounds

5627that are the subject of this proceeding on the dates and at the

5640times pertinent to this proceeding.

5645IV. Findings of Ultimate Fact Regarding Violations

565294. Based on the foregoing, it is determined that

5661Respondent violated section 550.2415(1)(a) by racing greyhound

5668ATASCOCITA ACURA, which was impermissibly medicated or

5675determined to have a prohibited substance present resulting a

5684positive test for dimethyl sulfoxide.

568995. Based on the foregoing, it is determined that

5698Respon dent violated section 550.2415(1)(a) by r acing greyhound

5707ATASCOCITA DALT, which was impermissibly medicated or determined

5715to have a prohibited substance present resulting in a positive

5725test for caffeine.

572896. Based on the foregoing, it is determined that

5737Respondent violated section 550.2415(1)(a) by racing greyhound

5744ATASCOCITA EDGE , which was impermissibly medicated or determined

5752to have a prohibited substance present resulting in a positive

5762test for theobromine.

576597. Based on the foregoing, it is determi ned that

5775Respondent violated section 550.2415(1)(a) by racing greyhound

5782ATASCOCITA EDGE, which was impermissibly medicated or determined

5790to have a prohibited substance present resulting in a positive

5800test for theophylline.

580398. Based on the foregoing, it is determined that

5812Respondent violated section 550.2415(1)(a) by racing greyhound

5819ATASCOCITA DALT, which was impermissibly medicated or determined

5827to have a prohibited substance present resulting in a positive

5837test for theobromine.

584099. Based on the foregoing, it is determined that

5849Respondent violated section 550.2415(1)(a) by racing greyhound

5856RCK MOHICAN, w hich was impermissibly medicated or determined to

5866have a prohibited substance present resulting in a positive test

5876for caffeine.

5878100. Based on t he foregoing, it is determined that

5888Respondent violated section 550.2415(1)(a) by racing greyhound

5895ATASCOCITA HAPPY, which was impermissibly medicated or

5902determined to have a prohibited substance present resulting in a

5912positive test for caffeine.

5916V. Agg ravating or Mitigating Factors

5922101. Petitioner presented evidence proving that Respondent

5929was disciplined in 2011 for two violations involving the

5938administration of class III drugs to racing greyhounds. These

5947violations are relevant to determining the applicable penalty

5955ranges in rule 61D - 6.012.

596110 2 . The violations charged in the administrative

5970complaints filed on November 28 and 30 , 2016 , and

5979December 28, 2016, occurred sufficiently c lose together in time

5989such that Respondent was not informed of the violations in these

6000complaints in time to enable her to take correctiv e measures.

6011However, by the time the administrative complaint dated

6019February 16, 2017, was filed, Respondent was on notice o f the

6031violations charged in the previously served administrative

6038complaints , so she had sufficient time before the January 28,

60482017, race to take appropriate corrective measures. This

6056constitutes an aggravating factor in determining appropriate

6063penalt ies .

606610 3 . The evidence establishes that the caffeine level in

6077RCK MOHICAN on November 26, 2016, was approximately 42 times the

6088permissible limit for that substance established in rule 61D -

60986.007(3)(a). As noted above, caffeine is a class II drug, which

6109means that there is a high potential that its administr ation

6120would affect the greyhound's performance . This constitutes an

6129aggravating factor in determining appropriate penalties.

6135CONCLUSIONS OF LAW

613810 4 . DOAH has jurisdiction over the parties and the

6149subject matter of this proceeding pursuant to sect ions 120.569

6159and 120.57(1), Florida Statutes.

616310 5 . A proceeding to suspend, revoke, or impose other

6174discipline upon a license is penal in nature. State ex rel.

6185Vining v. Fla. Real Estate Comm ' n , 281 So. 2d 487, 491 (Fla.

61991973). Therefore, Petitioner must prove the charges against

6207Respondent by clear and convincing evidence. Fox v. Dep ' t of

6219Health , 994 So. 2d 416, 418 (Fla. 1st DCA 2008)(citing Dep ' t of

6233Banking & Fin. V . Osborne Stern & Co. , 670 So. 2d 932 (Fla.

62471996)).

624810 6 . The Supreme Co urt of Florida has described the clear

6261and convincing standard of proof as follows :

6269Clear and convincing evidence requires that

6275the evidence must be found to be credible;

6283the facts to which the witnesses testify must

6291be distinctly remembered; the testimony must

6297be precise and explicit and the witnesses

6304must be lacking in confusion as to the facts

6313in issue. The evidence must be of such

6321weight that it produces in the mind of the

6330trier of fact a firm belief or conviction,

6338without hesitancy, as to the truth of the

6346allegations sought to be established.

6351In re Davey , 645 So. 2d 398, 404 (Fla. 1994)(quoting Slomowitz

6362v. Walker , 429 So. 2d 797, 800 (Fla. 4th DCA 1983)).

637310 7 . Section 550.2415 (1)(a) states , in pertinent part :

6384The racing of an animal that has been

6392impermissibly medicated or determined to

6397have a prohibited substance present is

6403prohibited. It is a violation of this

6410section for a person to impermissibly

6416medicate an animal or for an animal to have

6425a prohibited subs tance present resulting in

6432a positive test for such medications or

6439substances based on samples taken from the

6446animal before or immediately after the

6452racing of that animal.

645610 8 . Section 550.2415(1) (c) states : " [t]he finding of a

6468prohibited substance in a race - day specimen constitutes prima

6478facie evidence that the substance was administered and was

6487carried in the body of the animal while participating in the

6498race. "

64991 09 . Section 550.0251(3) require s Petitioner to adopt

6509reasonable rules for the control, sup ervision, and direction of

6519all applicants, permittees, and licensees, and for the holding,

6528conducting, and operating of all racetracks, race meets, and

6537races held in this state.

654211 0 . The statute also provide s that when a rac ing

6555greyhound has been imperm issibly medicated or drugged, action

6564may be taken " against an occupational licensee responsible

6572pursuant to rule ." § 550.2415(2), Fla. Stat.

658011 1 . Consistent with the se statutes, Petitioner has

6590adopted rule 61D - 6.002, the " absolute insurer rule, " making

6600trainers strictly responsible . Under rule 61D - 6.002(1), "[t]he

6610trainer of record shall be responsible for and be the absolute

6621insurer of the condition of the . . . racing greyhounds he/she

6633enters to race."

663611 2 . As discussed above, Petitioner has charged Respondent

6646with seven counts of violati ng section 550.2415 (1)(a) by racing

6657greyhounds which were impermissibly medicated or were determined

6665to have a prohibited substance present resulting in a positive

6675test for specifically identified medications or substance s .

668411 3 . As discussed above, t he procedures established and

6695consistently followed by Petitioner and the UF Lab in these

6705proceedings ensure the integrity of the sample through

6713collection, storage , and testing ; accurately record the source

6721of eac h sample ; and reliably and accurately demonstrate the

6731presence of impermissible medications or prohibited substances

6738in the greyhounds that are the subject of these proceedings on

6749the dates and at the times pertinent to th ese proceeding s .

676211 4 . For the reasons discussed above, it is concluded that

6774Petitioner has prove n , by clear and convincing evidence , that

6784Respondent violated section 550.2415(1)(a) by racing greyhounds

6791which were impermissibly medicated or determined to have a

6800prohibited substa nce present that resulted in a positive test

6810for those medications or substances , as specifically alleged in

6819the administrative complaints filed on November 28 and 30, 2016;

6829December 28, 2016; and February 16, 2017.

6836Penalty

683711 5 . Section 550.2415(3)(a) p rovid es , in pertinent part :

6849Upon the finding of a violation of this

6857section, the division may revoke or suspend

6864the license or permit of the violator or

6872deny a license or permit to the violator;

6880impose a fine against the violator in an

6888amount not exceeding the purse or

6894sweepstakes earned by the animal in the race

6902at issue or $10,000, whichever is greater;

6910require the full or partial return of the

6918purse, sweepstakes, and trophy of the race

6925at issue; or impose against the violator any

6933combination of such pena lties.

693811 6 . Section 550.2415(7) (c) provide s , in pertinent part:

6949The division rules must include a

6955classification system for drugs and

6960substances and a corresponding penalty

6965schedule for violations which incorporates

6970the Uniform Classification Guidelines for

6975Foreign Substances, Version 8.0, revised

6980December 2014, by the Association of Racing

6987Commissioners International, Inc.

699011 7 . Florida Administrative Code Rule 61D - 6.012(1) states

7001that penalties " shall " be imposed when specified substances have

7010been ide ntified by the state laboratory in a urine sample

7021collected from a greyhound participating in a pari - mutuel event.

7032The use of the word "shall" in the rule indicates that the

7044penalty schedule established in rule 61D - 6.012 is mandatory. 1 3 /

7057As discussed bel ow, subsection (4) of rule 61D - 6.012 sets forth

7070circumstances which may be considered for purposes of mitigating

7079or aggravating any penalty. Subsection (3) of the rule provides

7089t hat the agency may consider mitigation or aggravation to

7099deviate from the pen alty guidelines ÏÏ that is, to impose a

7111penalty that either is greater or less than the range of

7122penalties established in the rule for a particular type of

7132violation.

713311 8 . Rule 6 1D - 6.01 2 (2) states that the penalty for any

7149medication or drug is based on th e classification of that

7160medication or drug by the ARCI Guidelines.

7167119. Rule 61D - 6.012(2) ( b ) provides that for a class II

7181medication or drug , the penalty schedule shall be:

7189First violation of this chapter : $ 10 0 to

7199$ 1 , 000 fine and suspension of license zero

7208to 30 days ;

7211Second violation of this chapter : $ 2 50 to

7221$ 1 , 0 0 0 fine and suspension of license of no

7233less than 30 days, or revocation of license;

7241Third violation or any subsequent violation

7247of this chapter : $5 00 to $ 1 ,000 f ine and

7260suspension of license of no less than

726760 days , or revocation of license.

72731 20 . Rule 61D - 6.01 2 (2 )(c) provide s that for a c lass III

7291medication or drug, the penalty schedule shall be:

7299First violation of this chapter : $ 5 0 to

7309$500 fine;

7311Second violation of this chapter : $ 15 0 to

7321$750 fine and suspension of license zero to

732930 days;

7331Third violation or any subsequent violation

7337of this chapter : $ 2 50 to $1,000 fine and

7349suspension of license zero to 60 days.

735612 1 . Rule 61D - 6.01 2 (2)( d ) provid e s that for a class IV

7375medication or drug, the penalty schedule shall be:

7383First violation of this chapter : $ 5 0 to

7393$ 250 fine;

7396Second violation of this chapter : $ 10 0 to

7406$ 50 0 fine;

7410Third or subsequent violation of this

7416chapter : $ 2 0 0 to $1,000 fine and suspension

7428of license zero to 3 0 days.

743512 2 . Rule 61D - 6.012(4), which establishes aggravating or

7446mitigating factors for purposes of penalty determination,

7453states :

7455Circumstances which may be considered for

7461the purposes of mitigation or aggravation of

7468any penalty shall include, but are not

7475limited to, the following:

7479( a ) The impact of the offense to the

7489integrity of the pari - mutuel industry.

7496( b ) The danger to the public and/or racing

7506animals.

7507( c ) The number of repetitions of offenses .

7517(d) The time periods between offenses.

7523( e ) The number of complaints filed against

7532the licensee or permitholder, which have

7538resulted in prior discipline.

7542( f ) The length of time the licensee or

7552permitholder has practiced.

7555( g ) The deterrent effect o f the penalty

7565imposed.

7566( h ) Any efforts at rehabilitation.

7573( i ) Any other mitigating or aggravating

7581circumstances.

7582Penalt ies for the Violations Charged in T hese Proceedings

759212 3 . As discussed above, Petitioner proved that Respondent

7602previously was disciplined for having committed two violations

7610of section 550.2415(1)(a) by having administered class III

7618medications or drugs to racing greyhounds. Accordingly, every

7626violation with which Respondent has been charged in these

7635proceedings constitutes a "third" or "subsequent" violation of

7643chapter 550.

764512 4 . Pursuant to the penalty guidelines in rule 61D - 6.012 ,

7658the maximum penalt ies that collectively could be imposed in

7668these consolidated proceedings is a $7,000 fine, and a

7678suspension of Respondent's license for 330 days , or revocation

7687of her license.

769012 5 . H owever , Petitioner s eeks to impose a lesser penalty

7703in these proceedings . Specifically, Petitioner requests that a

7712fine of $1,000 be levied for each class II drug violation, with

7725an additional $200 "to be included for the positives involving

7735the aggravating factors" discussed a bove ; a fine of $750 to be

7747levied for each class III drug violation; and a fine of $500 to

7760be levied fo r each class IV drug violation. Thus, Petitioner

7771seeks total fine of $5, 6 50 in these proceedings .

7782126. Petitioner also seeks to suspend Respondent's

7789license . Specifically, Petitioner seeks to suspend Respondent's

7797license for 60 days for each class II drug violation , with an

" 7809additional 12 days to be included for bot h positives involving

7820the aggravating factors" enumerated above ; 30 days for each

7829class I II drug violation; and 15 days for each class IV

7841violation . 1 4 / Thus, Petitioner seeks to suspend Respondent's

7852license for a total of 279 days.

785912 7 . Upon full consi deration of the evidence, it is

7871concluded that the imposition of a total fine of $5,650 and a

7884suspension of Respondent's license for 279 days is supported by

7894the evidence and justified under the circumstances.

7901128 . Accordingly, the penalties recommended to be imposed

7910under the administrative complaint s in these proceedings are as

7920follows:

7921A. DOAH Case No. 17 - 4870 - DBPR Case No. 2016 - 049902,

7935count I consisting of one class IV drug violation : a fine of

7948$500 and a license suspensi on of 15 days ; DBPR Case

7959No. 2016 - 051419, count II consisting of one class II drug

7971violation: a fine of $1,000 and a license suspension of 6 0

7984days . The total penalty imposed for DOAH Case No. 17 - 4870 is a

7999fine of $1, 5 00 and a license suspension of 75 days.

8011B. DOAH Case No. 17 - 4871 Î DBPR Case No. 2016 - 053062,

8025count I consisting of one class IV drug violation: a fine of

8037$ 500 and a license suspension of 1 5 days; DBPR Case

8049No. 2016 - 053062, count II consisting of one cl ass III drug

8062violation: a fine of $750 and a license suspension of 30 days;

8074DBPR Case No. 2016 - 053069, count III consisting of one class IV

8087drug violation: a fine of $500 and a license suspension of 15

8099days. The total penalty imposed for DOAH Case No. 17 - 4871 is a

8113fine of $1,750 and a license suspension of 60 days.

8124C. DOAH Case No. 17 - 4872 Î DBPR Case No. 2016 - 056707, one

8139count consisting of one class II drug violation: a fine of

8150$1, 2 00 ($1,000 fine plus an additional $ 2 00 for the aggravating

8165factor regarding the amount of caffeine in the test result for

8176ATASCOCITA HAPPY) and a license suspension of 72 days (60 days

8187plus 12 days for the aggrava ting factor regarding the amount of

8199caffeine in the test result for ATASCOCITA HAPPY ). The total

8210penalty for DOAH Case No. 17 - 4872 is a fine of $1, 2 00 and a

8227license suspension of 72 days.

8232D. DOAH Case No. 17 - 4873 Î DBPR Case No. 2017 - 006845, one

8247count consisting of one class II drug violation: a fine of

8258$1, 2 00 ($1,000 fine plus $ 2 00 for the aggravating factor of the

8274failure to take corrective measures after receiving notice ) and

8284a license suspension of 72 days (60 days plus 12 days for the

8297aggravating factor of failing to take corrective measures after

8306receiving notice ). The total penalty for DOAH Case

8315No. 17 - 4873 is a fine of $1, 2 00 and a license suspension of 72

8332days.

8333RECOMMENDATION

8334Based on the foregoing Findings of Fact and Conclusions of

8344Law, it is RECOMMENDED t hat Petitioner, Department of Business

8354and Profes sional Regulation, Division of Pari - Mutuel Wagering,

8364enter final orders in these proceedings as follows:

8372A. For DOAH Case No. 17 - 4870 , finding that Respondent

8383committed two violations of section 550.2451(1)(a) and imposing

8391a penalty consisting of a $1,500 fine and suspending

8401Respondent's license for 75 days;

8406B. For DOAH Case No. 17 - 4871, finding that Respondent

8417committed three violations of section 550.2415(1)(a) and

8424imposing a penalty consisting of a $1,750 fine and suspending

8435Respondent's license for 60 days;

8440C. For DOAH Case No. 17 - 4872, finding that Respondent

8451committed one violation of section 550.2415(1)(a) and imposing a

8460penalty consisting of a $1,200 fine and suspending Respondent's

8470license for 72 days; and

8475D. For DOAH Case No. 17 - 4873, finding that Respondent

8486committed one violation of section 55 0 .2415 and imposing a

8497penalty consisting of a $1,200 fine and suspending Respondent's

8507license for 72 days.

8511DONE AND ENTERED this 2 7 th day of December , 2017 , in

8523Tallahassee, Leon County, Florida.

8527S

8528Cathy M. Sellers

8531Administrative Law Judge

8534Division of Administrative Hearings

8538The DeSoto Building

85411230 Apalachee Parkway

8544Tallahassee, Florida 32399 - 3060

8549(850) 488 - 9675

8553Fax Filing (850) 921 - 6847

8559www.doah.state.fl.us

8560Fi led with the Clerk of the

8567Division of Administrative Hearings

8571this 2 7 th day of December , 2017 .

8580ENDNOTES

85811/ The 2016 version of chapter 550 was in effect at the time of

8595the alleged violations at issue in these consolidated cases.

86042/ Maribel Alonzo and Javier Aparisi - Winthuysen served as

8614interpreters for the final hearing.

86193/ Respondent discussed the photographs in her testimony, but

8628they were not available for viewing at the final hearing, and

8639Respondent had not previously provided them t o Petitioner. The

8649undersigned considered Respondent's tender of the photographs as

8657a late - filed exhibit and reserved ruling on their admission

8668pending Petitioner 's filing of a response in opposition. On

8678November 6, 2017, Petitioner filed its Response in Opposition to

8688Respondent's Moti on to Admit Untimely Evidence. Petitioner's

8696objection to admission of the photographs is overruled and the

8706photographs are admitted into evidence. The legal basis for

8715this ruling and the weight that has been assigned to these

8726photographs is discussed in note 11, infra .

87344/ The final hearing was scheduled for two days, October 23

8745and 24, 2017. On October 23, Respondent presented the testimony

8755of all but one of her witnesses, whose testimony she planned to

8767present on Oct ober 24. However, this witness did not appear and

8779his appearance was not secured by a subpoena. Therefore, the

8789second volume of the Transcript did not contain any sworn

8799testimony or address any other evidence, and consisted only of

8809the ALJ's instructions regarding submitting proposed recommended

8816orders.

88175/ Additionally, at the time the urine sample is collected in

8828the ginny pit, each greyhound is wearing the blanket that

8838identifies its post number in the race immediately following the

8848sample collection. This also assists in identifying the

8856greyhound whose urine is being sampled.

88626/ Pursuant to section 90.202(5), the undersigned takes official

8871recognition of the Partial Summary Final Order entered on

8880December 22, 2017, in Charles F. McClellan and Natas ha Nemeth v.

8892Department of Business and Professional Regulation, Division of

8900Pari - Mutuel Wagering , DOAH Case No. 17 - 5238RU. In that case,

8913the ALJ determined that agency action based on urine sampling

8923procedures that were substantially similar, if not iden tical, to

8933those set forth in Section 3 of the Greyhound Veterinary

8943Assistant Procedures Manual issued on March 31, 2010 ("2010

8953Manual") was invalid because it was based on an agency statement

8965that previously had been determined, in Dawson v. Department of

8975Business and Professional Regulation , Case No. 14 - 5276RU (Fla.

8985DOAH Jan. 29, 2015), aff'd per curiam , Department of Business

8995and Professional Regulation v. Dawson , 187 So. 3d 1255 (Fla. 4th

9006DCA 2016), to constitute an unadopted rule that violated section

90161 20.54(1)(a). Key to the ALJ's determination in McClellan that

9026urine sampling procedures used in that case constituted an

9035unadopted rule was the agency's stipulation that: "[t]he

9043Division and its representatives are still following the

9051protocols and proced ures outlined in Section 3 of the 2010

9062Manual as its protocol for sampling racing greyhounds' urine."

9071By contrast, in the instant proceedings, the parties did not

9081stipulate or otherwise assert that the sampling procedures used

9090to collect and store the uri ne constitute an unadopted rule that

9102violates section 120.54(1)(a), and the evidence presented in

9110these proceedings was not sufficiently detailed to enable the

9119undersigned to determine whether these procedures were, in fact,

9128substantially similar or identi cal to those in Section 3 of the

91402010 Manual. Accordingly, under the existing record in these

9149proceedings, the undersigned is not able to make a finding that

9160the urine sampling procedures used in these cases constitute an

9170unadopted rule on which Petitione r would not be entitled to rely

9182as a basis for agency action. However, the undersigned is

9192keenly aware that section 120.57(1)(e) prohibits both the ALJ

9201and the agency from taking agency action based on an unadopted

9212rule. Accordingly, if Petitioner believ es that additional

9220evidence needs to be presented in these proceedings to enable

9230salient findings of fact to be made on this issue in these

9242cases, it may, before entering the final orders, remand these

9252proceedings to the undersigned with a request that the

9261evidentiary hearing be re - opened to take additional evidence on

9272this issue, that additional findings of fact on this issue be

9283made, and that a recommended order after remand be entered.

92937/ Petitioner also keeps a log of the urine samples collected

9304from the racing greyhounds. The veterinary assistants who

9312collect the samples fill out tickets with the information

9321consisting of the date on which the race was run; the urine

9333specimen no.; the greyhound's name, color, sex, and age; the

9343track number on which the race was run; the owner's name; the

9355trainer's name; the name of the veterinary assistant who

9364collected the urine sample; and the greyhound's tattoo no.

93738 / Petitioner has a contract with the UF Lab to perform

9385laboratory testing on racing animal urine specimens for the

9394presence of impermissible medications or prohibited substances

9401in racing animals.

94049 / Discrepancy forms are completed by UF Lab staff and

9415transmitted to the pari - mutuel wagering facility, which

9424subsequently contacts the UF Lab with the correct information

9433regarding specimen number or date.

943810 / In the letter that Respondent submitted with the late - filed

9451exhibit consisting of eight photographs, which has been treated

9460as her proposed recommended order, Respondent asserted

9467additional argu ments, not presented at the final hearing, to

9477support her position that the urine samples that tested positive

9487for prohibited substances were not taken from the greyhounds

9496that are the subject of these proceedings. Specifically, she

9505argues that the medica tions detected in the urine samples are

9516performance - enhancing substances, but the results of consecutive

9525races by the same greyhounds do not show enhanced performances.

9535This argument is rejected. There was no evidence presented

9544showing that administratio n of a performance - enhancing

9553medication always results in enhancement of the racing

9561greyhound's performance. Accordingly, it cannot be inferred

9568from the evidence in the record that the greyhounds' failure to

9579exhibit enhanced performance in consecutive rac es proves that

9588they were not administered performance - enhancing medications.

9596Respondent also asserts that on October 15, 2016, on which a

9607urine sample was collected from ATASCOCITA DALT, she did not

9617work, because she does not work on Saturdays. This argu ment

9628also fails. First, there no evidence presented at the hearing

9638to support her assertion that she does not work on Saturdays,

9649or, specifically, that she did not work on Saturday, October 15,

96602016, when the urine sample was collected from ATASCOCITA DAL T.

9671Furthermore, Petitioner's Exhibit 4, the program for the second

9680race on the afternoon of Saturday, October 15, 2016, shows

9690ATASCOCITA DALT as running from the eighth post position.

9699Respondent presented no evidence to show that this exhibit,

9708which was a uthenticated by Zimmerman, as Petitioner's records

9717custodian, contained incorrect information regarding ATASCOCITA

9723DALT.

972411 / Testa and Agganis also expressed concern that because urine

9735sample collection occurs in the ginny pit, which is not

9745accessible to trainers, the trainers are not able to verify,

9755through their own observations, that the urine sampling is

9764conducted according to Petitioner's established protocol.

9770However, neither Testa nor Agganis identified any specific

9778instances in which the urine sa mpling at PBKC was not conducted

9790according to protocol, and, most important, no evidence was

9799presented showing that the urine specimens at issue in these

9809specific proceedings were not collected according to that

9817protocol.

981812 / Petitioner opposed the admis sion of these photographs on the

9830ground that they were not provided by Respondent before the

9840final hearing, so constitute unfair surprise to Petitioner; that

9849they are not authenticated; and that they are not relevant to

9860any material issue in these proceedi ngs. As the Supreme Court

9871of Florida recently observed in Florida Industrial Power Users

9880Group v. Graham , 209 So . 3d 1142, 1146 (Fla. 2017), the Florida

9893Evidence Code is not applicable to administrative proceedings,

9901and administrative agencies therefore possess the discretion

9908whether to require the parties to strictly adhere to the

9918evidentiary rules established in c hapter 90, Florida Statutes.

9927Here, because Respondent appeared pro se and is not familiar

9937with evidentiary principles regarding authentication; because

9943the photographs, if authentic, are tangentially relevant to show

9952general conditions present at the PBKC , albeit not necessarily

9961on the dates on which the greyhounds that are the subject of

9973these proceedings raced; and because Petitioner was able to

9982conduct cross - examination at the final hearing regarding the

9992photographs, the undersigned determines that they should be, and

10001therefore are, admitted into evidence. However, for the reasons

10010discussed herein, they have been given minimal weight.

1001813 / The penalty schedules for the types of violations establish

10029a range of penalties that may be imposed per violation , so

10040afford the agency discretion to impose a penalty that falls

10050within that range. Importantly, the agency's exercise of

10058discretion must be based on evidence in the record that supports

10069the agency's exercise of its discretion. See Fla. Power and

10079Light C o. v. Siting Bd. , 693 So. 2d 1025, 1027 - 28 (Fla. 1st DCA

100951997); E.M. Watkins & Co. v. Bd. of Regents , 414 So. 2d 583

10108(Fla. 1st DCA 1982).

101121 4 / Although in paragraph 66 of its Proposed Recommended Order,

10124Petitioner requests that a suspension of "forty - five " days be

10135imposed for the class III drug violation, the amount stated in

10146the accompanying parenthetical is "(30)." Similarly, although

10153Petitioner requests that a suspension of "thirty" days be

10162imposed for each class IV drug violation, the amount stated in

10173the accompanying parenthetical is "(15)." The undersigned has

10181determined, based on the total length of suspension requested,

10190that the amounts stated in the parentheticals represent the

10199length of suspension requested for the class III and class IV

10210violati ons.

10212COPIES FURNISHED:

10214Joseph Yauger Whealdon, III, Esquire

10219James A. Lewis, Esquire

10223Department of Business and

10227Professional Regulation

102292601 Blair Stone Road

10233Tallahassee, Florida 32399 - 2202

10238(eServed)

10239Areci Robledo

102411470 Haverhill Road South

10245West Palm Beach, Florida 33415

10250Robert Ehrhardt, Director

10253Division of Pari - Mutuel Wagering

10259Capital Commerce Center

102622601 Blair Stone Road

10266Tallahassee, Florida 32399

10269(eServed)

10270Jason Maine, General Counsel

10274Department of Business and

10278Professional Regulation

10280Capital Commerce Center

102832601 Blair Stone Road

10287Tallahassee, Florida 32399 - 2202

10292(eServed)

10293NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

10299All parties have the right to submit written exceptions within

1030915 days from the date of this Recommended Order. Any exceptions

10320to this Recommended Order should be filed with the agency that

10331will issue the Final Order in this case.

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Date
Proceedings
PDF:
Date: 03/28/2018
Proceedings: Agency Final Order filed.
PDF:
Date: 03/27/2018
Proceedings: Agency Final Order
PDF:
Date: 12/28/2017
Proceedings: Partial Summary Final Order for Same Case filed by Respondent.
PDF:
Date: 12/28/2017
Proceedings: Transmittal letter from Claudia Llado forwarding records to the agency.
PDF:
Date: 12/27/2017
Proceedings: Recommended Order
PDF:
Date: 12/27/2017
Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
PDF:
Date: 12/27/2017
Proceedings: Recommended Order (hearing held October 23, 2017). CASES CLOSED.
Date: 12/08/2017
Proceedings: Transcript of Proceedings (not available for viewing) filed.
PDF:
Date: 12/08/2017
Proceedings: Petitioner's Proposed Recommended Order filed.
PDF:
Date: 11/28/2017
Proceedings: Notice of Filing Transcript.
Date: 11/28/2017
Proceedings: Transcript of Proceedings (not available for viewing) filed.
PDF:
Date: 11/06/2017
Proceedings: Petitioner's Response in Opposition to Respondent's Motion to Admit Untimely Evidence filed.
PDF:
Date: 10/31/2017
Proceedings: Respondent`s Proposed Recommended Order filed.
Date: 10/30/2017
Proceedings: Respondent's Composite Exhibit 1 (not available for viewing) filed.
PDF:
Date: 10/30/2017
Proceedings: Letter with Attachments to Judge Sellers from Areci Robledo (attachments not available for viewing) filed.
Date: 10/23/2017
Proceedings: CASE STATUS: Hearing Held.
PDF:
Date: 10/17/2017
Proceedings: Respondent's Witness List filed.
Date: 10/11/2017
Proceedings: Petitioner's Proposed Exhibits filed (exhibits not available for viewing).
PDF:
Date: 10/11/2017
Proceedings: (Petitioner's)Transmittal Letter for Exhibits filed.
PDF:
Date: 10/11/2017
Proceedings: Petitioner's Exhibit List filed.
PDF:
Date: 10/11/2017
Proceedings: Petitioner's Witness List filed.
PDF:
Date: 09/14/2017
Proceedings: Notice of Court Reporter filed.
PDF:
Date: 09/07/2017
Proceedings: Order Accepting Qualified Representative.
PDF:
Date: 09/05/2017
Proceedings: Petitioner's Request to Accept Qualified Representative filed.
PDF:
Date: 09/05/2017
Proceedings: Petitioner's Notice of Service of It's First Interlocking Discovery Request filed.
PDF:
Date: 08/31/2017
Proceedings: Order of Pre-hearing Instructions.
PDF:
Date: 08/31/2017
Proceedings: Notice of Hearing by Video Teleconference (hearing set for October 23 and 24, 2017; 9:00 a.m.; West Palm Beach and Tallahassee, FL).
PDF:
Date: 08/31/2017
Proceedings: Order of Consolidation (DOAH Case Nos. 17-4870PL, 17-4871PL, 17-4872PL, 17-4873PL).
PDF:
Date: 08/30/2017
Proceedings: Joint Response to Initial Order and Motion to Consolidate filed.
PDF:
Date: 08/29/2017
Proceedings: Initial Order.
PDF:
Date: 08/28/2017
Proceedings: Election of Rights filed.
PDF:
Date: 08/28/2017
Proceedings: Administrative Complaint filed.
PDF:
Date: 08/28/2017
Proceedings: Agency referral filed.

Case Information

Judge:
CATHY M. SELLERS
Date Filed:
08/28/2017
Date Assignment:
10/16/2017
Last Docket Entry:
03/28/2018
Location:
West Palm Beach, Florida
District:
Southern
Agency:
ADOPTED IN TOTO
Suffix:
PL
 

Counsels

Related Florida Statute(s) (9):