Judge rules against state on greyhound drug testing
TALLAHASSEE, Fla. – Ruling in favor of two trainers suspended by the state after their dogs tested positive for cocaine, an administrative law judge on Friday said Florida gambling regulators have wrongly used an outlawed set of protocols to test racing greyhounds for drugs.
Administrative Law Judge Lawrence P. Stevenson's ruling is the latest legal defeat for the state Division of Pari-Mutuel Wagering, which also has been on the losing end of cases involving regulation of “designated player” card games at pari-mutuel facilities and issues involving what are known as summer jai-alai permits.
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Friday's ruling will likely have wide-reaching implications, with one prominent animal-rights activist saying it would effectively ban gambling regulators from performing drug tests on greyhounds until they create a rule for the testing procedures.
Stevenson's decision came in a challenge filed by greyhound trainers Charles McClellan and Natasha Nemeth, whose licenses were suspended after their dogs tested positive for cocaine 24 times over a two-year period at a track in Orange Park.
Following the suspensions, the trainers challenged procedures used by gambling regulators to collect and process urine samples of racing greyhounds, arguing that the procedures had been stricken down in an earlier case and never replaced.
Stevenson sided with the trainers in the 13-page order that centered on a 2010 procedures manual. In the earlier case, Administrative Law Judge F. Scott Boyd in 2015 decided a key section of the manual, which deals with drug testing, amounted to a rule that had not been properly adopted. Boyd ordered gambling regulators to discontinue relying on the manual.
Gambling regulators admitted they never adopted a rule laying out the drug testing protocols but said that they had stopped distributing the manual to employees.
“Persons employed by the division to collect and preserve greyhound urine samples receive `on the job training' rather than direct instruction from the 2010 manual,” Stevenson wrote.
But the state agency conceded that “the protocols and procedures by which racing greyhounds urine is sampled” hasn't changed since Boyd's 2015 decision in what is known as the Dawson case, Stevenson wrote.
“The methods used are substantially similar, if not identical, to those set forth in the 2010 Manual,” he wrote.
In fact, the Division of Pari-Mutuel Wagering “frankly stipulated” that “the division and its representatives are still following the protocols and procedures” outlined in the manual even after being ordered to cease relying on it, Stevenson wrote.
“Agency action taken in reliance on Section 3 (of the manual) or any substantially similar statement subsequent to Dawson is invalid,” the judge concluded.
Carey Thiel, executive director of GREY2K USA Worldwide, which seeks to end greyhound racing, said the decision could have major effects.
“This is a disastrous ruling that undermines greyhound welfare, and the rule of law. As a result of today's decision, McClellan and Nemeth will never be held accountable for their greyhound cocaine positives. Also, all pending greyhound drug cases will be dismissed. It also invites race fixing. The state must now construct a new drug testing regimen, and until it adopts emergency rules will have no ability to sanction greyhound drugging,” Thiel said in a statement.
Howard Korman, CEO of bestbet, which operates the Orange Park greyhound track, issued a statement late Friday saying the trainers are no longer connected to the Jacksonville-area facility and that bestbet thinks the license suspension is “entirely appropriate.”
“We believe there is clear guidance for state regulators to enforce appropriate and stringent drug testing of all racing animals and hoped for serious sanctions against behavior that we have a zero tolerance for at our facilities,” Korman said. “While we commend regulatory staff for the important work they do, we hope the state will appeal this ruling and take actions to continue their enforcement of the suspensions already in place. Furthermore, they need to ensure their enforcement policies are up-to-date and provide clear guidance for all parties.”
Thiel's organization has pushed Florida lawmakers to do away with dog racing but allow pari-mutuel operators to continue other gambling operations, a process known as “decoupling.” While the effort appears to have widespread support in the Legislature, the proposal has repeatedly failed to muster the backing necessary for passage.
News Service of Florida