17-004871PL Department Of Business And Professional Regulation, Division Of Pari-Mutuel Wagering vs. Areci Robledo Status: Closed Recommended Order on Wednesday, December 27, 2017.

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.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND

PROFESSIONAL REGULATION,

DIVISION OF PARI - MUTUEL

WAGERING,

Petitioner,

vs. Case Nos. 17 - 4870PL

17 - 4871PL

ARECI ROBLEDO, 17 - 4872PL

17 - 4873PL

Respondent.

_______________________________/

RECOMMENDED ORDER

A hearing was conducted in this case pursuant to

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

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

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

2017 , by video teleconference at sites in West Palm Beach and

Tallahassee, Florida.

APPEARANCES

For Petitioner: J oseph Yauger Whealdon, III, Esquire

James A. Lewis, Esquire

Department of Business and

Professional Regulation

Division of Pari - mutuel Wagering

2601 Blair Stone Road

Tallahassee, Florida 32399

For Respondent: Areci Robledo , pro se

1470 Haverhill Road South

West Palm Beach, Florida 3341 5

STATEMENT OF THE ISSUE S

Whether Respondent raced animal s that were impermissibly

medicated or determined to have prohibited substance s present,

resulting in a positive test for such medication s or substances

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

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

so, the penalty that should be imposed .

PRELIMINARY STATEMENT

Petitioner, Department of Business and Professional

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

served four a dministrative c omplaint s on Respondent , Areci

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

counts of violati ng statutes and rules governing pari - mutuel

racing by impermissibly medicating or administering prohibited

substances to racing greyhounds for which she was the trainer of

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

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

R espondent disputed the material facts alleged in the

administrative complaint s and timely requested an administrative

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

assignment of an ALJ to conduct a hearing pursuant to sections

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

consolidated for purposes of conducting the final hearing and

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

October 23 and 24, 2017.

Petit ioner presented the testimony of Ms. Jessica

Zimmerman, a chief veterinary assistant employed by Petitioner;

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

Florida Racing Laboratory ; and Respondent . Petitioner offered

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

without objection. O fficial recognition was taken of

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

6.002, 61D - 6.007, and 61D - 6.012.

Respondent testified 2/ on her own behalf and presented the

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

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

another kennel that races greyhounds at PBKC . Respondent

offered a late - filed composite exhibit consisting of several

photographs for admission into evidence; this exhibit was marked

as Respondent's Exhibit 1 and admitted into evidence over

objection. 3 /

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

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

2017. 4/ By the Notice of Filing Transcript issued on

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

2017, to file their proposed recommended orders . On October 30,

2017, Respondent filed, along with her late - filed exhibit , a

letter stating her position on the charges against her ; this

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

Petitioner ' s Proposed Recommended Order was timely filed on

December 8, 2017. Both proposed recommended orders were duly

considered in preparing this Recommended Order .

FINDINGS OF FACT

I. The Parties

1. Petitioner is the state agency charged with regulating

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

chapter 550 .

2 . Respondent is the holder of Pari - Mutuel Wagering

Individual Occupational License No. 1572955 - 1021, which

authoriz es her to train greyhounds in Florida pursuant to

s ection 550.105. Respondent has been licensed by Petitioner

since 2009.

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

proceeding s , Respondent was subject to chapter 550 and the

implementing rules codified in Florida Administrative Code

C hapter 61D - 6 .

II. T he Administrative Complaints

4. As noted above, Petitioner served Respondent with four

administrative complaints charging her with a total of seven

counts of violati ng statutes and rules governing pari - mutuel

racing by impermissibly medicating or administering prohibited

substances to racing greyhounds for which she was the trainer of

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

September 27, 2016 , and January 28, 2017.

A. DOAH Case No. 17 - 4870

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

office an a dministrative c omplaint consisting of two enforcement

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

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

6. Count I of this administrative complaint, DBPR Case

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

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

which was impermissibly medicated or determined to have a

prohibited substance present resulting in a positive test for

dimethyl sulfoxide.

7. Count II of this administrative complaint, DBPR Case

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

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

which was i mpermissibly medicated or determined to hav e a

prohibited substance present resulting in a positive test for

caffeine.

B. DOAH Case No. 17 - 4871

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

office an a dministrative c omplaint consisting of two enforcement

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

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

9. Count I of this administrative complaint, DBPR Case

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

550.2415(1)(a) by racing greyhound ATASCOCITA EDGE , which was

impermissibly medicated or determined to have a prohibited

substance present resulting in a positive test for the obromine .

10. Count II of this administrative complaint, also part

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

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

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

prohibited substance present resulting in a positive test for

theo phylline .

11. Count III of this administrative complaint, DBPR Case

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

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

which was impermissibly medicated or determined to hav e a

prohibited substance present resulting in a positive test for

theo bromine .

C. DOAH Case No. 17 - 4872

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

clerk's office an administrative complaint consisting of one

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

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

13 . In this administrative complaint, Petitioner has

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

by racing greyhound RCK MOHICAN , which was impermissibly

medicated or determined to a prohibited substance present

resulting in a positive test for caffeine .

D. DOAH Case No. 17 - 487 3

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

clerk's office an administrative complaint consisting of

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

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

15. In this administrative complaint, Petit ioner has

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

by racing greyhound ATASCOCITA HAPPY , which was impermissibly

medicated or determined to hav e a prohibited substance present

resulting in a positive test for caffeine .

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

A. Racing Greyhound Urine Sample Collection and Testing

16 . PBKC is a facility operated by a permit holder

authorized to conduct pari - mutuel wagering in Florida under

c hapter 550.

17 . Respondent trained and raced greyhounds at PBKC

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

period relevant to these consolidated proceedings . All

violations charged in the administrative complaints are alleged

to have occurred at PBKC.

18 . To enfo rce the statutes and rules prohibiting the

impermissible medication or administration of prohibited

substances to racing greyhounds, Petitioner collects urine

samples from racing greyhounds immediately before races in which

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

greyhounds are collected in a restricted area called the "ginny

pit."

19. Jessica Zimmerman, chief veterinary assistant for

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

samples are collected by veterinary assistants using clean cups

that are unsealed immediately before being used to collect the

samples. When each urine sample is collected, the veterinary

assistant checks the i dentification number tattooed on the

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

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

collected that have given rise to this proceeding were collected

pursuant to this process . 6/

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

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

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

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

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

initials ; and a unique sample number.

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

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

following grey hounds that participated in specified races held

on specific dates and from which urine samples were taken :

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

container holding the collected urine sample . 7/

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

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

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

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

or prohibited substances. Petitioner is in constant possession

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

containers in which the samples are shipped are securely locked.

25 . Here, the evidence established that urine specimen

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

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

the above - described protocol.

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

laboratory staff inspect the samples to ensure that the evidence

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

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

any discrepancies with respect to date and sample number and

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

Laboratory Information Management System. T hereafter, the

samples are assigned an internal alphanumeric number and moved

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

laboratory staff perform testing. The samples are stored in

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

impermissible medication or a prohibited substance ÏÏ in which

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

confirmed as negative for a medication or prohibited substance

and thereafter dis carded .

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

taken and tested for an impermissible medication or a prohibited

substance. If the test initially indicates a positive result

for a n impermissible medication or a prohibited substance, a

confirmatory test is performed to determine the quantity of the

medication or substance in the sample. The confirmatory testing

process entails running calibrated samples, positive controls to

ensure that the extraction process was accurate, and negative

controls to ensure that there is no carryover of the medication

or substance through the confirmatory testing process. If the

confirmatory testing process yields a positive result for a n

impermissible medication or prohibited substance, the

documentation is subjected to a two - step supervisory review ,

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

transmitted to Petitioner.

28 . Here, the evidence establishe s that urine specimen

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

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

protocol.

29 . The Association of Racing Commissioners International

has adopted the Uniform Classification Guidelines for Foreign

Substances ("ARCI Guidelines"). 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 outcome of a race.

30 . C affeine is a central nervous system stimulant and

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

at a urinary concentration less than or equal to 200 nanograms

per milliliter are not reported to Petitioner as an

impermissible medication or prohibited su bstance. Conversely,

levels of caffeine at a urinary concentration greater than

200 nanograms per milliliter are reported to Petitioner as a n

impermissible medication or prohibited substance.

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

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

theobromine at urinary concentrations less than or equal to

400 nanograms per milliliter are not reported to Petitioner as

an impermissible medication or prohibited substance.

Conversely, levels of t heo bromine at urinary concentrations

greater than 400 nanograms per milliliter are reported to

Petitioner as a n impermissible medication or prohibited

substance.

32 . T heophylline is a bronchodilator , smooth muscle

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

levels of theo phylline at urinary concentrations less than or

equal to 400 nanograms per milliliter are not reported to

Petitioner as an impermissible medication or a prohibited

substance. Conversely, levels of theophylline at urinar y

concentrations greater than 400 nanograms per milliliter are

reported to Petitioner as a n impermissible medication or a

prohibited substance.

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

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

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

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

of any concentration of dimethyl sulfoxide in a urine sample is

reported to Petitioner as a n impermissible medication or a

prohibi ted substance.

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

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

greyhound constitutes prima facie evidence that the substance

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

participating in the race .

B. Urine Specimen Test Results

Urine Specimen No. 105889 - ATASCOCITA ACURA

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

collected by Petitioner's veterinary assistant from ATASCOCITA

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

September 27, 2016.

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

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

210 micrograms per milliliter of dimethyl sulfoxide.

37 . The UF Lab prepared and transmitted to Petitioner a

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

test result for urine specimen no. 105889.

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

threshold drug. Accordingly, the finding of 210 micrograms per

mi lliliter of dimethyl sulfoxide in urine specimen no. 105889

establish es that ATASCOCITA ACURA carried a n impermissible

medication or a prohibited substance in its body during the

twelfth race on September 27, 2016.

Urine Specimen No. 108583 Î ATASCOCITA DA LT

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

collected by Petitioner's veterinary assistant from ATASCOCITA

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

2016.

40 . UF Lab liquid chromatography - mass spectrometry testing

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

4.343 - 0.03 micrograms per milliliter of caffeine .

41 . UF Lab liquid chromatography - mass spectrometry testing

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

728 - 90 nano grams per milliliter of theobromine .

42 . UF Lab liquid chromatography - mass spectrometry testing

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

1.578 - 0.08 micrograms per milliliter of theo phylline .

43 . These concentrations exceed the non - reportable levels

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

44 . The UF Lab prepared and transmitted to Petitioner a

Report of Positive Result dated October 27, 2016, reporting

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

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

micrograms per milliliter of caffeine , 728 - 90 nanograms per

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

milliliter of theophylline establish that ATASCOCITA DALT

carried these impermissible medications or p rohibited substance s

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

46 . N otwithstanding that the test results for urine

specimen no. 108583 showed t he presence of theobromine and

theophylline in ATASCOCITA DALT duri ng the second race on

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

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

charged Respondent with violations related to the presence of

these substances, and has only charged Respondent w ith one

violation for the presence of caffeine above the non - reportable

level during the second race on October 15, 2016.

Urine Specimen No. 108633 Î ATASCOCITA EDGE

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

collected by Petitioner's veterinar y assistant from ATASCOCITA

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

2016.

48 . UF Lab liquid chromatography - mass spectrometry testing

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

8 22 - 90 nanograms per millilite r of theobromine.

49 . UF Lab liquid chromatography - mass spectrometry testing

of urine specimen no. 108633 showed a urine concentration of

625 - 80 nanograms per milliliter of theophylline.

50. These concentrations exceed the non - reportable levels

for each of these medications or substances established in

rule 61D - 6.007(3).

51. The UF Lab prepared and transmitted to Petitioner a

Report of Positive Result dated November 17 , 2016, reporting

thes e test results for urine specimen no. 108633 .

52 . The findings of urine concentrations of 822 - 90

nanograms per milliliter of theobromine and 625 - 80 nanograms

per milliliter of theophylline establish that ATASCOCITA EDGE

carried these impermissibl e medications or prohibited substance s

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

Urine Specimen No. 108304 Î ATASCOCITA DALT

5 3 . As noted above, urine specimen no. 108304 was

collected by Petitioner's veterinary assistant from ATASCOCITA

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

2016.

54. UF Lab liquid chromatography - mass spectrometry testing

of urine specimen no. 108304 showed a urine concentration of

534 - 90 nanograms per milliliter of theobromine.

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

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

5 6 . The UF Lab prepared and transmitted to Petitioner a

Report of Positive Result dated November 17, 2016, reporting

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

5 7 . The finding of a urine concentration of 534 -

90 nanograms per milliliter of theobromine establish es that

ATASCOCITA DALT carried this impermissible medication or

prohibited substance in its body during the tenth race on

October 19, 2016 .

Urine Specimen No. 113568 Î RCK MOHICAN

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

collected by Petitioner's veterinary assistant from RCK MOHICAN,

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

20 16.

59 . UF Lab liquid chromatography - mass spectrometry testing

of urine specimen no. 113568 showed a urine concentration of

8.532 - 0.03 micrograms per milliliter of caffeine .

60. UF Lab liquid chromatography - mass spectrometry testing

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

3.434 - 0.09 micro grams per milliliter of theobromine.

61 . UF Lab liquid chromatography - mass spectrometry testing

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

8.374 - 0.08 micrograms per milliliter of theophylline.

62 . These concentrations exceed the non - reportable levels

for each of these medications or substances established in

rule 61D - 6.007(3).

63 . The UF Lab prepared and transmitted to Petitioner a

Report of Positive Result dated December 13, 2016, reporting

these test results for urine specimen no. 113568 .

64 . The findings of 8.532 - 0.03 micrograms per

milliliter of caffeine , 3.434 - 0.09 micrograms per milliliter

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

theophylline establish that RCK MOHICAN carried these

impermissible medications or prohibited substance s in its body

during the eighth race on November 26 , 2016.

65 . N otwithstanding that the test results for urine

specimen no. 113568 showed the pre sence of theobromine and

theophylline in RCK MOHICAN during the eighth race on

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

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

charged Respondent with violations related to the prese nce of

these medications or substances, and has only charged Respondent

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

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

Urine Specimen No. 125184 Î ATASCOCITA HAPPY

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

collected by Petitioner's veterinary assistant from ATASCOCITA

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

January 28, 2017.

67 . UF Lab liquid chromatography - mass spectrometry testing

of urine specimen no. 1 25184 showed a urine concentration

greater than 1.25 micrograms per milliliter of caffeine.

6 8 . UF Lab liquid chromatography - mass spectrometry testing

of urine specimen no. 125184 showed a urine concentration of

988 - 90 nanograms per milliliter of theobromine.

6 9 . UF Lab liquid chromatography - mass spectrometry testing

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

2.129 - 0.08 micrograms per milliliter of theophylline.

70 . These concentrations exceed the non - reportable levels

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

71 . The UF Lab prepared and transmitted to Petitioner a

Report of Positive Result dated February 10, 2017, reporting

these test results for urine specimen no. 125184 .

72 . The findings of urine concentrations of greater than

1.25 micrograms per milliliter of caffeine, 988 - 90 nanograms

per milliliter of theobromine, and 2.129 - 0.08 micrograms per

milliliter of theophylline establish that ATASCOCITA HAPPY

carried these impermissible medicat ions or prohibited substance s

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

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

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

theobromine and theophylline in ATASCOCITA HAPPY during the

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

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

has not charged Respondent with violations related to the

presence of these medications or substances, and has only

c harged Respondent with one violation for the presence of

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

January 28, 2017 .

C. Respondent's Defenses

74. Respondent denied having administered any

impermissible medications or prohibited su bstances to the racing

greyhounds that are the subject of these proceeding s .

75. Respondent also questioned , on three grounds, the

accuracy of the test results showing the presence of

impermissible medications or prohibited substances in the

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

76. First, Respondent dispute s whether the urine specimens

that yielded the positive test results were taken from the

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

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

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

verify that the animal from which the sample was collected was

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

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

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

which the sample is taken .

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

discussed, Zimmerman described the process by which urine

samples are collected from ra cing greyhounds for prohibited

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

identity of the greyhound from which the sample is collected is

determined pursuant to an identification number tattooed on the

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

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

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

that this protocol was followed in collecting urine samples from

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

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

evidence to show that the urine specimens for which positive

test results were obtained were not collected from the

greyhounds specificall y identified herein , on the dates and at

the times pertinent to these proceedings .

7 8 . Respondent presented evidence to show that conditions

at the PBKC made it possible for racing greyhounds to ingest

foods and beverages that could cause urine specim ens from those

animals to test positive for impermissible medications or

prohibited substances.

7 9 . Specifically , Respondent testified that foods, such as

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

are available to purchase at the PBKC ; that PBKC personnel

consume these foods and beverages at many locations within the

facility ; that these foods and beverages are often left

unattended in areas where they are acces sible to the racing

greyhounds ; and that the greyhounds sometimes consume these

foods and beverages.

80 . Jamie Testa corroborated Respondent's testimony . She

echoed that PBKC personnel consume food and beverages in the

PBKC facility and leave unfinishe d food and beverages in various

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

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

observed a veterinarian at the PBKC spill coffee and not clean

up the spill, leaving it accessible fo r consumption by

greyhounds . She described the se conditions at PBKC as pervasive

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

It's every day."

81. On cross - examination, Testa acknowledged that

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

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

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

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

subject of these proceedings consuming food or beverage s during

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

relevant to these proceedings.

8 2 . Arthur Ag g anis also corroborated Respondent's

testimony that PBKC personnel of ten consume food and beverages

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

coffee is sometimes spilled on the ground . Agganis testified

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

ground.

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

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

relevant to these proceedings.

8 4 . Respondent also presented an exhibit consisting of

eight photographs ostensibly taken inside the PBKC . 12 / The

photographs depict vending machines from which chocolate bars

and other snacks and sodas can be purchased, employees eating

food , and unattended soda containers and beverage cups placed on

tables and on the floor.

8 5 . On cross - examination, Respondent a cknowledged that she

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

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

identify which photographs she took and which were provided to

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

location s with in the PBKC facility in which the photographs

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

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

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

in the PBKC or that they accurately depict conditions within the

PBKC. She also did not present any evidence establishing that

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

the greyhounds that are the subject of these proceedings raced .

In fact, she acknowledged that none of the photographs were

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

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

8 6 . Respondent's argument that the positive test results

are due to the greyhounds that are the subject of these

proceedings having ingested foods or beverages at the PBKC

rather than having been purposely administered those substances ,

is unpersuasive .

87. Respondent did not present any evidence to show that

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

portrayed in the photographs accurately depicted the conditions

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

times during which the greyhounds that are the subject of these

pro ceedings raced .

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

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

greyhounds that are the subject of these proceedings raced, no

evidence was presented showing that the greyhound s actually

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

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

all acknowledged that they did not witness the gre yhounds that

are the subject of these proceedings ingest any foods o r

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

these proceedings.

89. Respondent also argue s that the urine samples taken

from the greyhounds that are the subject of these proceedings

could have been collected in contaminated containe rs, resulting

in false positive test results for impermissible medications or

prohibited substances. Specifically, Respondent testified: " I

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

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

90. Testa also testified that on occasion, she observed

veterinary assistants collecting urine samples by placing a

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

could cause cross - contamination of the urine sample .

9 1 . Respondent's testimony that she observed Petitioner's

veterinary assistants collect urine samples from greyhounds

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

Respondent herself testified that trainers do not have access to

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

process. These contradictions render Respondent's testimony

incredible.

92. Further , ther e is no evidence showing that

Petitioner's veterinary assistants placed the urine collection

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

from the greyhounds that are the subject of the proceedings on

the pertinent dates and at the perti nent time s.

9 3 . Rather, t he evidence establishes that Petitioner 's

veterinary assistants consistently follow an established

protocol in collect ing urine specimens for testing , which

includes using clean, sealed cups that are unsealed immediately

before the sample is collected , and then resealed with evidence

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

persuasive evidence shows that Petitioner's veterinary

assistants followed this protocol in collect ing the urine

samples from the greyhounds th at are the subject of this

proceeding on the dates and at the times pertinent to these

proceeding s . There is no credible, persuasive evidence showing

that this protocol was not followed by Petitioner's veterinary

assistants in collecting the urine samples from the greyhounds

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

times pertinent to this proceeding.

IV. Findings of Ultimate Fact Regarding Violations

94. Based on the foregoing, it is determined that

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

ATASCOCITA ACURA, which was impermissibly medicated or

determined to have a prohibited substance present resulting a

positive test for dimethyl sulfoxide.

95. Based on the foregoing, it is determined that

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

ATASCOCITA DALT, which was impermissibly medicated or determined

to have a prohibited substance present resulting in a positive

test for caffeine.

96. Based on the foregoing, it is determined that

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

ATASCOCITA EDGE , which was impermissibly medicated or determined

to have a prohibited substance present resulting in a positive

test for theobromine.

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

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

ATASCOCITA EDGE, which was impermissibly medicated or determined

to have a prohibited substance present resulting in a positive

test for theophylline.

98. Based on the foregoing, it is determined that

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

ATASCOCITA DALT, which was impermissibly medicated or determined

to have a prohibited substance present resulting in a positive

test for theobromine.

99. Based on the foregoing, it is determined that

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

RCK MOHICAN, w hich was impermissibly medicated or determined to

have a prohibited substance present resulting in a positive test

for caffeine.

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

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

ATASCOCITA HAPPY, which was impermissibly medicated or

determined to have a prohibited substance present resulting in a

positive test for caffeine.

V. Agg ravating or Mitigating Factors

101. Petitioner presented evidence proving that Respondent

was disciplined in 2011 for two violations involving the

administration of class III drugs to racing greyhounds. These

violations are relevant to determining the applicable penalty

ranges in rule 61D - 6.012.

10 2 . The violations charged in the administrative

complaints filed on November 28 and 30 , 2016 , and

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

such that Respondent was not informed of the violations in these

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

However, by the time the administrative complaint dated

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

violations charged in the previously served administrative

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

2017, race to take appropriate corrective measures. This

constitutes an aggravating factor in determining appropriate

penalt ies .

10 3 . The evidence establishes that the caffeine level in

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

permissible limit for that substance established in rule 61D -

6.007(3)(a). As noted above, caffeine is a class II drug, which

means that there is a high potential that its administr ation

would affect the greyhound's performance . This constitutes an

aggravating factor in determining appropriate penalties.

CONCLUSIONS OF LAW

10 4 . DOAH has jurisdiction over the parties and the

subject matter of this proceeding pursuant to sect ions 120.569

and 120.57(1), Florida Statutes.

10 5 . 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). Therefore, Petitioner must 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)).

10 6 . The Supreme Co urt of Florida has described the clear

and convincing standard of proof as follows :

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)).

10 7 . Section 550.2415 (1)(a) states , in pertinent part :

The racing 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 subs tance present 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.

10 8 . Section 550.2415(1) (c) states : " [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. "

1 09 . Section 550.0251(3) require s Petitioner to adopt

reasonable rules for the control, sup ervision, 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.

11 0 . The statute also provide s that when a rac ing

greyhound has been imperm issibly medicated or drugged, action

may be taken " against an occupational licensee responsible

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

11 1 . Consistent with the se statutes, Petitioner has

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

trainers strictly responsible . 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 race."

11 2 . As discussed above, Petitioner has charged Respondent

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

greyhounds which were impermissibly medicated or were determined

to have a prohibited substance present resulting in a positive

test for specifically identified medications or substance s .

11 3 . As discussed above, t he procedures established and

consistently followed by Petitioner and the UF Lab in these

proceedings ensure the integrity of the sample through

collection, storage , and testing ; accurately record the source

of eac h sample ; and reliably and accurately demonstrate the

presence of impermissible medications or prohibited substances

in the greyhounds that are the subject of these proceedings on

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

11 4 . For the reasons discussed above, it is concluded that

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

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

which were impermissibly medicated or determined to have a

prohibited substa nce present that resulted in a positive test

for those medications or substances , as specifically alleged in

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

December 28, 2016; and February 16, 2017.

Penalty

11 5 . Section 550.2415(3)(a) p rovid es , in pertinent 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 exceeding 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 pena lties.

11 6 . Section 550.2415(7) (c) provide s , in pertinent 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

Foreign Substances, Version 8.0, revised

December 2014, by the Association of Racing

Commissioners International, Inc.

11 7 . Florida Administrative Code Rule 61D - 6.012(1) states

that penalties " shall " be imposed when specified substances have

been ide ntified by the state laboratory in a urine sample

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

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

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

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

circumstances which may be considered for purposes of mitigating

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

t hat the agency may consider mitigation or aggravation to

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

penalty that either is greater or less than the range of

penalties established in the rule for a particular type of

violation.

11 8 . Rule 6 1D - 6.01 2 (2) states that the penalty for any

medication or drug is based on th e classification of that

medication or drug by the ARCI Guidelines.

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

medication or drug , the penalty schedule shall 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 f ine and

suspension of license of no less than

60 days , or revocation of license.

1 20 . Rule 61D - 6.01 2 (2 )(c) provide s that for a c lass III

medication or drug, the penalty schedule shall 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.

12 1 . Rule 61D - 6.01 2 (2)( d ) provid e s that for a class IV

medication or drug, the penalty schedule shall 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.

12 2 . Rule 61D - 6.012(4), which establishes aggravating or

mitigating factors for purposes of penalty determination,

states :

Circumstances which may be considered for

the purposes of mitigation or aggravation of

any penalty shall include, but are not

limited to, the following:

( a ) The impact of the offense to the

integrity of the pari - mutuel industry.

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

animals.

( c ) The number of repetitions of offenses .

(d) The time periods between offenses.

( e ) The number of complaints filed against

the licensee or permitholder, which have

resulted in prior discipline.

( f ) The length of time the licensee or

permitholder has practiced.

( g ) The deterrent effect o f the penalty

imposed.

( h ) Any efforts at rehabilitation.

( i ) Any other mitigating or aggravating

circumstances.

Penalt ies for the Violations Charged in T hese Proceedings

12 3 . As discussed above, Petitioner proved that Respondent

previously was disciplined for having committed two violations

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

medications or drugs to racing greyhounds. Accordingly, every

violation with which Respondent has been charged in these

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

chapter 550.

12 4 . Pursuant to the penalty guidelines in rule 61D - 6.012 ,

the maximum penalt ies that collectively could be imposed in

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

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

of her license.

12 5 . H owever , Petitioner s eeks to impose a lesser penalty

in these proceedings . Specifically, Petitioner requests that a

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

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

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

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

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

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

126. Petitioner also seeks to suspend Respondent's

license . Specifically, Petitioner seeks to suspend Respondent's

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

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

the aggravating factors" enumerated above ; 30 days for each

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

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

license for a total of 279 days.

12 7 . Upon full consi deration of the evidence, it is

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

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

the evidence and justified under the circumstances.

128 . Accordingly, the penalties recommended to be imposed

under the administrative complaint s in these proceedings are as

follows:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

factor regarding the amount of caffeine in the test result for

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

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

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

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

license suspension of 72 days.

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

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

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

failure to take corrective measures after receiving notice ) and

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

aggravating factor of failing to take corrective measures after

receiving notice ). The total penalty for DOAH Case

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

days.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

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

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

enter final orders in these proceedings as follows:

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

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

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

Respondent's license for 75 days;

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

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

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

Respondent's license for 60 days;

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

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

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

license for 72 days; and

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

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

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

license for 72 days.

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

Tallahassee, Leon County, Florida.

S

Cathy M. Sellers

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

Fi led with the Clerk of the

Division of Administrative Hearings

this 2 7 th day of December , 2017 .

ENDNOTES

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

the alleged violations at issue in these consolidated cases.

2/ Maribel Alonzo and Javier Aparisi - Winthuysen served as

interpreters for the final hearing.

3/ Respondent discussed the photographs in her testimony, but

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

Respondent had not previously provided them t o Petitioner. The

undersigned considered Respondent's tender of the photographs as

a late - filed exhibit and reserved ruling on their admission

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

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

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

objection to admission of the photographs is overruled and the

photographs are admitted into evidence. The legal basis for

this ruling and the weight that has been assigned to these

photographs is discussed in note 11, infra .

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

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

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

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

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

second volume of the Transcript did not contain any sworn

testimony or address any other evidence, and consisted only of

the ALJ's instructions regarding submitting proposed recommended

orders.

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

the ginny pit, each greyhound is wearing the blanket that

identifies its post number in the race immediately following the

sample collection. This also assists in identifying the

greyhound whose urine is being sampled.

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

recognition of the Partial Summary Final Order entered on

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

Department of Business and Professional Regulation, Division of

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

the ALJ determined that agency action based on urine sampling

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

those set forth in Section 3 of the Greyhound Veterinary

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

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

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

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

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

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

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

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

urine sampling procedures used in that case constituted an

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

Division and its representatives are still following the

protocols and proced ures outlined in Section 3 of the 2010

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

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

stipulate or otherwise assert that the sampling procedures used

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

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

these proceedings was not sufficiently detailed to enable the

undersigned to determine whether these procedures were, in fact,

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

2010 Manual. Accordingly, under the existing record in these

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

the urine sampling procedures used in these cases constitute an

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

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

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

and the agency from taking agency action based on an unadopted

rule. Accordingly, if Petitioner believ es that additional

evidence needs to be presented in these proceedings to enable

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

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

proceedings to the undersigned with a request that the

evidentiary hearing be re - opened to take additional evidence on

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

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

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

from the racing greyhounds. The veterinary assistants who

collect the samples fill out tickets with the information

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

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

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

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

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

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

laboratory testing on racing animal urine specimens for the

presence of impermissible medications or prohibited substances

in racing animals.

9 / Discrepancy forms are completed by UF Lab staff and

transmitted to the pari - mutuel wagering facility, which

subsequently contacts the UF Lab with the correct information

regarding specimen number or date.

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

exhibit consisting of eight photographs, which has been treated

as her proposed recommended order, Respondent asserted

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

support her position that the urine samples that tested positive

for prohibited substances were not taken from the greyhounds

that are the subject of these proceedings. Specifically, she

argues that the medica tions detected in the urine samples are

performance - enhancing substances, but the results of consecutive

races by the same greyhounds do not show enhanced performances.

This argument is rejected. There was no evidence presented

showing that administratio n of a performance - enhancing

medication always results in enhancement of the racing

greyhound's performance. Accordingly, it cannot be inferred

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

exhibit enhanced performance in consecutive rac es proves that

they were not administered performance - enhancing medications.

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

urine sample was collected from ATASCOCITA DALT, she did not

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

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

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

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

2016, when the urine sample was collected from ATASCOCITA DAL T.

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

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

ATASCOCITA DALT as running from the eighth post position.

Respondent presented no evidence to show that this exhibit,

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

custodian, contained incorrect information regarding ATASCOCITA

DALT.

11 / Testa and Agganis also expressed concern that because urine

sample collection occurs in the ginny pit, which is not

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

through their own observations, that the urine sampling is

conducted according to Petitioner's established protocol.

However, neither Testa nor Agganis identified any specific

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

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

presented showing that the urine specimens at issue in these

specific proceedings were not collected according to that

protocol.

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

ground that they were not provided by Respondent before the

final hearing, so constitute unfair surprise to Petitioner; that

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

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

of Florida recently observed in Florida Industrial Power Users

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

Evidence Code is not applicable to administrative proceedings,

and administrative agencies therefore possess the discretion

whether to require the parties to strictly adhere to the

evidentiary rules established in c hapter 90, Florida Statutes.

Here, because Respondent appeared pro se and is not familiar

with evidentiary principles regarding authentication; because

the photographs, if authentic, are tangentially relevant to show

general conditions present at the PBKC , albeit not necessarily

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

these proceedings raced; and because Petitioner was able to

conduct cross - examination at the final hearing regarding the

photographs, the undersigned determines that they should be, and

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

discussed herein, they have been given minimal weight.

13 / The penalty schedules for the types of violations establish

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

afford the agency discretion to impose a penalty that falls

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

discretion must be based on evidence in the record that supports

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

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

1997); E.M. Watkins & Co. v. Bd. of Regents , 414 So. 2d 583

(Fla. 1st DCA 1982).

1 4 / Although in paragraph 66 of its Proposed Recommended Order,

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

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

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

Petitioner requests that a suspension of "thirty" days be

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

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

determined, based on the total length of suspension requested,

that the amounts stated in the parentheticals represent the

length of suspension requested for the class III and class IV

violati ons.

COPIES FURNISHED:

Joseph Yauger Whealdon, III, Esquire

James A. Lewis, Esquire

Department of Business and

Professional Regulation

2601 Blair Stone Road

Tallahassee, Florida 32399 - 2202

(eServed)

Areci Robledo

1470 Haverhill Road South

West Palm Beach, Florida 33415

Robert Ehrhardt, Director

Division of Pari - Mutuel Wagering

Capital Commerce 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 this case.