98-002973 Division Of Pari-Mutuel Wagering vs. Salvatore F. Lembo Status: Closed Recommended Order on Monday, November 16, 1998.

Summary: Assuming arguendo, but not ruling, that the statute defines a violation and provides a penalty, clear and convincing evidence of inhumane treatment/neglect of named greyhound was not proven.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF PARI-MUTUEL WAGERING, )

)

Petitioner, )

)

vs. ) Case No. 98-2973

)

SALVATORE F. LEMBO, )

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, this cause came on for formal hearing by

telephonic conference call on October 19, 1998, before Ella Jane

P. Davis, a duly assigned Administrative Law Judge of the

Division of Administrative Hearings. Petitioner's counsel and

witness were present in Tallahassee, Florida, at a different

location than that of the Administrative Law Judge. Respondent,

who testified on his own behalf, was present in Debuque, Iowa.

APPEARANCES

For Petitioner: Eric H. Miller

Chief Assistan t General Counsel

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-1007

For Respondent: Salvatore F. Lembro, pro se

1900 Washington Street, Number 5

Dubuque, Iowa 52001

STATEMENT OF THE ISSUE

Whether Respondent violated Section 550.2415(6)(a), Florida

Statutes, and Rule 61D-6.002(1), Florida Administrative Code.

PRELIMINARY STATEMENT

This action was initiated by an administrative complaint

filed by the Division of Pari-Mutuel Wagering on or about June 5,

1998.

Both counts of the administrative complaint contain a single

allegation that Respondent neglected to provide humane treatment

to a racing greyhound known as "Lobo Sable," resulting in severe

ulcerous sores of the dog's skin. The only difference in the

administrative complaint's two counts is that one count addresses

Section 550.2415(6)(a), Florida Statutes, and the other count

addresses the Rule 61D-6.002(1), Florida Administrative Code.

Respondent timely requested formal hearing, and the cause

was referred to the Division of Administrative Hearings on or

about July 14, 1998. Pursuant to stipulation, formal hearing was

conducted by a three-way telephonic conference call on

October 19, 1998.

Petitioner complied with the prehearing order by filing a

prehearing statement and pre-filing exhibits. At formal hearing,

Respondent stipulated that the facts as stated under Section C,

paragraphs 1-8 of Petitioner's prehearing statement were

admitted. These stipulated facts have been utilized as

appropriate wi thin this Recommended Order.

The parties agreed that the undersigned take official

recognition of Petitioner's pre-numbered Exhibits 1 and 2.

Petitioner's Exhibits 3 and 4 were ultimately admitted as joint

exhibits of the parties. Petitioner's Exhibit 5 also was

admitted in evidence. Petitioner presented the oral testimony of

Dr. Lillian Plank, D.V.M. Respondent testified on his own

behalf.

No transcript was filed. All timely filed proposed findings

of fact and conclusions of law have been considered in the

preparation of this recommended order.

FINDINGS OF FACT

1. Petitioner is the State of Florida, Department of

Business and Professional Regulation, Division of Pari-Mutuel

Wagering. That Agency is charged with regulating the pari-mutuel

wagering industry in Florida and those individuals licensed under

Chapter 550, Florida Statutes.

2. During the period of July 1 through September 10, 1997,

Respondent held unrestricted "U1" Professional Pari-Mutuel

Wagering Occupational License number 1538139-1081.

3. During the period of July 27, 1997, through September 3,

1997, Respondent was the trainer for Lobo Sable, a greyhound

which Respondent entered in races at the Jefferson County Kennel

Club in Jefferson County, Florida. Pari-mutuel wagering was

conducted on those races.

4. Respondent had leased Lobo Sable from Bill Elliott, the

owner of the dog.

5. On or about August 26, 1997, Respondent turned over

approximately seven dogs to the Humane Society shelter in

Tallahassee, Florida. On or about September 2, 1997, Respondent

turned over approximately 17 more dogs to the Humane Society in

Thomasville, Georgia. Respondent then returned to Iowa.

6. Lobo Sable was one of the dogs turned over by Respondent

to the Humane Society shelter in Thomasville, Georgia.

7. On or about September 9, 1997, Lobo Sable was brought to

Dr. Lillian Plank, D.V.M. at the Tallahassee Humane Society,

a/k/a the Animal Aide Society, by Ms. Linthacum. Where and when

Lobo Sable came into Ms. Linthacum's care, custody, and control,

was never fully explained on the record, but it is inferred that

she was somehow connected with the Thomasville, Georgia Humane

Society.

8. On September 9, 1997, another veterinarian, and Lillian

Plank examined Lobo Sable. This examination showed deep ulcerous

sores on each front leg, exposing the bone of each leg. Each

ulcer was approximately 1-½ centimeters by 2 centimeters, to 2

centimeters by 2-½ centimeters in diameter. Lobo Sable also had

additional skin ulcers and lesions similar to bedsores,

consistent with pressure/trauma due to prolonged confinement in

an area with hard surfaces and no bedding.

9. As testified by Dr. Plank, the ulcerous sores observed

on Lobo Sable were a form of decubitus ulcer. Decubitus ulcers

develop through stages, beginning with a reddening of the

affected skin area, progressing through thickening of the skin

and a reduction in blood circulation to the affected area, and

finally result in an open ulcer. Racing greyhounds are

vulnerable to decubitus ulcers because of their low body fat and

lack of natural cushioning. On September 9, 1997, Lobo Sable's

decubitus ulcers with exposed bones were more severe than any

that Dr. Plank had seen during her 12 years of practice.

10. During her September 9, 1997, examination of Lobo

Sable, Dr. Plank also observed the animal to be flea-invested.

11. Dr. Plank estimated that the conditions of confinement

for Lobo Sable would have existed from seven to fourteen days in

order to produce the types of decubitus which she saw on

September 9, 1997.

12. On direct examination, Dr. Plank conceded that the

decubitus ulcers could have developed in as little as seven to

ten days, and she would not clearly state that the sores she

examined would have to have predated September 2, 1997.

13. On cross-examination, Dr. Plank also conceded the

scientific possibility that Lobo Sable's condition could have

arisen in seven days.

14. Dr. Plank opined that Lobo Sable was probably naturally

thinner than the average greyhound. Lobo Sable weighed in at

64 pounds at Dr. Plank's office on September 9, 1997.

15. In order to appropriately treat the existing decubitii

and prevent further decubitii, Dr. Plank felt that it was

necessary to have a nutritional focus (high protein diet),

utilize all antibiotics, and provide daily cleansing of the

wounds with topical treatment thereafter. She opined that the

dog minimally should have received this type of treatment when

the first signs of decubitus appeared and ideally should have

been placed on a cushioned bed. She did not believe the dog had

received any type of treatment at all.

16. Respondent testified that when he delivered Lobo Sable

to the Humane Society in Thomasville, Georgia, on September 2,

1997, the dog was immediately washed and dipped for fleas. This

testimony was not refuted, and according to Dr. Plank, the flea

dip solution by itself would not have enlarged existing decubitus

ulcers.

17. No evidence one way or the other was introduced either

orally or by documentation to explain why Lobo Sable should have

been flea infested on September 9, 1997, if he had been flea

dipped on September 2, 1997.

18. There is no evidence to show what care or lack of care

Lobo Sable received between September 2, 1997 and September 9,

1997.

19. Respondent testified that Lobo Sable had raced on

August 30, 1997, weighing 69 pounds. This testimony is supported

by Exhibit 4. The same exhibit indicates that Lobo Sable

officially weighed-in for races over the five to six week period

prior to August 30, 1997, at between 69 and 69 ½ pounds.

20. Respondent testified without refutation that Lobo Sable

was examined by the track veterinarian immediately prior to his

race on August 30, 1997. No evidence of that veterinarian's

findings was admitted in evidence.

CONCLUSIONS OF LAW

21. The Division of Administrative Hearings has

jurisdiction over the parties and subject matter of this cause,

pursuant to Section 120.57(1), Florida Statutes.

22. Section 550.2415(6)(a), Florida Statutes, provides as

follows:

It is the intent of the Legislature that animals that

participate in races in this state on which pari mutuel

wagering is conducted and animals that are bred and

trained in this state for racing be treated humanely,

both on and off race tracks, throughout the lives of

the animals.

23. Rule 61D-6.002(1), Florida Administrative Code,

provides as follows:

(1) The trainer of record shall be responsible for and

be the absolute insurer of the condition of the horses

or racing greyhounds he/she enters to raceainers,

kennel owners and operators are presumed to know the

rules of the division.

24. The foregoing statute and rule are the only authority

cited by the Petitioner Agency in its administrative complaint or

in support of the requested penalty of a $250 administrative fine

and revocation of Respondent's pari-mutuel occupational license.

25. Even read together, the statute and rule do not state

either a violation to be disciplined or a penalty to be imposed.

A duty of cradle-to-grave care of greyhounds can only be

inferred, but that is not sufficient to create notice of what

constitutes a violation of the aspirational statute and/or rule,

nor is it sufficient to impose a licensure penalty. "A court may

look to the title of an Act to aid in interpretation of the Act,

but the meaning may not be enlarged by the title." Cook v.

Blazer Financial Services, Inc. , 332 So. 2d 677 (Fla. 1st DCA

1976). Furthermore, as the Court in Capital National Finance

Corporation v. Department of Insurance and Treasurer , 690 So. 2d

1335 (Fla. 3d DCA 1997), stated,

". . . binding on this Court is the rule that 'highly

regulatory and penal laws ought not to be extended by

construction.' Florida Industrial Commission v.

Manpower, Inc., of Miami , 91 So. 2d 197, 199 (Fla.

1956)."

26. Assuming arguendo, but not ruling, that Section

550.2415(3)(a), Florida Statutes, setting forth violation and

penalty guidelines and prosecutorial processes for impermissible

substances in race animals, could be applied to all aspects of

Section 550.2415, the Petitioner Agency still has failed to meet

the standard of proof for this type of case. The burden of proof

and duty to go forward in license revocation cases is upon the

prosecuting agency. The standard of proof is that of "clear and

convincing" evidence. Ferris v. Turlington , 510 So. 2d 292 (Fla.

1997).

27. "Clear and convincing evidence," requires that the

evidence presented must be found to be credible; the facts to

which the witnesses testify 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. See Smith v. Department of Health and

Rehabilitative Services , 552 So. 2d 956 (Fla. 1st DCA 1988);

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

28. The evidence of damage by flea infestation and severe

ulcerous sores to Lobo Sable is overwhelming. The Petitioner

desires that an inference be drawn from the evidence of damage to

the dog to establish that Respondent neglected to provide humane

treatment. Respondent surmises that Lobo Sable's condition was

not identifiable during the period of time that Respondent had

care, custody and control of him, and that the dog's condition

had deteriorated between September 2, 1997, when Respondent

relied on the Thomasville Humane Society to assume the dog's

care, until September 9, 1997, when the dog was presented to Dr.

Plank.

29. The evidence and facts as found clearly show that Lobo

Sable raced at its usual weight on August 30, 1997. By law, in

order to race, the dog had to be inspected by a veterinarian

shortly prior to the time it raced. It is unlikely that the

track veterinarian would have approved Lobo Sable for racing if a

deteriorated skin condition had been noticeable on August 30,

1997. Moreover, Lobo Sable was out of Respondent's care, custody

and control no later than September 3, 1997. That indicates that

the dog was only in Respondent's care, custody and control for

approximately two days before being turned over to the Georgia

Humane Society. Dr. Plank conceded the scientific possibility

that Lobo Sable's decubitii could have arisen and worsened

significantly in seven days, and that this thin greyhound,

weighing 64 pounds, could have had its condition accelerated over

a seven to ten day period. This state of affairs does not

constitute "clear and convincing" evidence of inhumane treatment

or neglect by Respondent. Neglect or abuse of Lobo Sable cannot

be clearly attributed to Respondent, and abuse or neglect of the

dog between September 2 and September 9 by another has not

convincingly been ruled out.

RECOMMENDATION

Upon the foregoing findings of fact and conclusions of law,

it is

RECOMMENDED that the Department of Business Professional

Regulation, Division of Pari-Mutuel Wagering enter a Final Order

dismissing the administrative complaint against Respondent.

DONE AND ENTERED this 16th day of November, 1998, in

Tallahassee, Leon County, Florida.

_____________________________ ______

ELLA JANE P. DAVIS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 16th day of November, 1998.

COPIES FURNISHED:

Eric Miller, Esquire

Department of Business and

Professional Regulation

Division of Pari-Mutuel Wagering

1940 North Monroe Street

Tallahassee, Florida 32399-1007

Salvatore Lembo

c/o Flying Lightning Kennel

Apartment 5

1900 Washington Street

Dubuque, Iowa 52001

Deborah R. Miller, Director

Pari-Mutuel Wagering

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-0792

Lynda L. Goodgame, General Counsel

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15

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

this Recommended Order should be filed with the agency that will

issue the final order in this case.