ALJDEC decisions subject to certification as final

07A-018-RAC · Department of Racing · 2008-01-30

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 22, 2008 at 1:30 p.m. APPEARANCES: Appellant C. Tom Taylor appeared on his own behalf; the Arizona Department of Racing appeared through Blair Driggs, Esq., Assistant Attorney General. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT Background and Procedure 1. Appellant C. Tom Taylor is the General Manager of Tucson Greyhound Park (“TGP”). 2. On October 16, 2007, the three TGP Stewards held a hearing in two complaints that had been made against Mr. Taylor. 3. On October 23, 2007, Mr. Taylor acknowledged receipt of the Stewards’ ruling #119, which fined Mr. Taylor $250 “[f]or allowing four greyhounds to leave the [TGP] Compound on October 8, 2007, without proper documentation and examination by the Arizona Department of Racing State Veterinarian.” 4. On October 23, 2007, Mr. Taylor also acknowledged receipt of the Stewards’ ruling #117, which fined Mr. Taylor $125 “[f]or allowing an improperly licensed employee [to] perform a racing secretary’s duty (updating greyhound performance cards) in the [TGP] race office on October 11, 2007 in violation of A.A.C. R19-2-306.C and R19-2-306.F.1.” 5. Mr. Taylor appealed and requested a hearing on the fines. 6. Pursuant to A.R.S. § 5-104(D) and (S), the Department of Racing (“the Department”) referred Mr. Taylor’s appeals to the Office of Administrative Hearings and scheduled a hearing in due course. 7. Mr. Taylor waived the Notice of Hearing required by A.R.S. § 41-1092.05(D). 8. A hearing was held on January 22, 2008. The Department presented the testimony of Daniel J. Reinertson, the Chief Greyhound Steward for the State of Arizona, and had admitted into evidence three exhibits. Mr. Taylor testified on his own behalf. 9. Mr. Reinertson was involved in and signed off on ruling #117 and #119, although the Chief Steward for TGP had conducted the hearings. 10. Mr. Taylor did not dispute the facts or findings of violation in ruling #117 and #119. Instead, he argued that, under the circumstances, the penalties were excessive. Instead of being fined, he should have received only warnings. Additional Hearing Evidence Ruling #119 11. Mr. Taylor as General Manager of TGP is responsible for its compliance with applicable Department regulation. 12. The parties agreed on the following chronology of events: 1. On Friday, October 5, 2007, Cindy Toering, DVM, one of the Department’s contract veterinarians, was asked to examine 14 greyhounds that were leaving TGP. When TGP’s employee brought the greyhounds up for examination, he only brought up ten. Dr. Toering suggested that the missing four greyhounds be examined the next day, on Saturday, October 6, 2007. 2. No greyhounds were brought to Dr. Toering for examination on October 6, 2007. 3. On Monday, October 8, 2007 at 15:20 and 16:31 hours, Mr. Taylor called the mobile telephone of Andrew J. Carlton, DVM, the Department’s Chief Greyhound Veterinarian. Dr. Carlton did not answer either of these calls. 4. When Dr. Carlton became aware of Mr. Taylor’s calls, he called Mr. Taylor. Mr. Taylor told him that he had realized that he allowed four greyhounds who had not been examined by a Department veterinarian to leave the TGP compound. Mr. Taylor had not realized that the greyhounds had not been examined when he allowed them to leave the TGP compound but only realized they had not been inspected when Aaron Larriva, TGP’s Racing Secretary, told him. 5. The four greyhounds had been taken to Tucson veterinarian Phil Comer, DVM to be spayed and neutered. 6. Dr. Comer verified the identity of the four greyhounds through their tattoos and found all four greyhounds to be in good health.

13. Mr. Reinertson testified that Mr. Taylor had testified at the Stewards’ hearing that there had been a mixup in the paperwork for four dogs that were scheduled to leave the TGP compound after release to an adoption agency. In the past, the Stewards have imposed much greater fines up to a maximum of $1,000 or suspended licenses for other licensees’ violations of the same policy. They determined that the $250 fine was sufficient because only four dogs were involved. 14. Approximately 600 dogs are on the premises of TGP at any given time. Approximately 10 dogs per week leave the facility each week for one reason or another. 15. Mr. Taylor admitted that he knew that the Department’s policy required dogs to be examined by a Department veterinarian before they were allowed to leave TGP. The reason for the requirement was to protect canine populations from communicable diseases that originated at licensed race track operations. 16. Mr. Taylor testified that, over the past two and one-half years, greyhound adoption agencies had problems working with TGP. He had been unable to establish a relationship with greyhound rescue groups and so had started his own adoption program at TGP. 17. Mr. Taylor testified that the four dogs at issue were retired and had been abandoned at TGP by their original racing kennel. TGP had taken care of these animals. 18. Mr. Taylor testified that, as part of TGP’s adoption program, it had hosted an open house, which representatives of a rescue group had attended. As a result, the rescue group said it would like to start adopting retired greyhounds. To start the adoption programs, the rescue group “cat-tested” 119 dogs, which meant that the dogs were determined to be safe around cats and other pets. The rescue group wanted to start with picking up four dogs each week for the next six weeks. 19. Mr. Taylor testified that the four greyhounds that were released without having been examined by a Department veterinarian on October 8, 2007 were the first four dogs that were slated to be released to the rescue group. On the preceding Thursday, he had talked to Dr. Carlton and made arrangements for a veterinarian to examine the four dogs slated to be released to the rescue group on Monday, as well as ten other dogs where were scheduled to leave TGP on Saturday. 20. Mr. Taylor testified that he understood that all 14 dogs would be examined by a veterinarian on Friday, October 5, 2007. The usual practice at TGP is that the completed examination forms are left with the guard, who checks the forms before allowing the dogs to be released. 21. Mr. Taylor testified that, on the afternoon of Monday, October 8, 2007, the rescue group representatives arrived at TGP. The representatives were waiting outside, where it was 95°. Mr. Taylor called TGP’s Racing Secretary, Aaron Larriva, but he was not answering his telephone. He then called Dr. Toering, who was in Benson and could not tell him whether the dogs had been checked. He tried to call Dr. Carlton, but only got his voicemail. 22. Mr. Taylor was afraid that, if he turned the rescue group representatives away, he would not be able to place dogs in the future. The representatives told him that they were going to take the dogs to a veterinarian to be spayed or neutered, that the dogs would then spend time in a foster home, and that the dogs would finally be transported to San Diego, where they would be placed for adoption. Mr. Taylor decided to release the dogs to the rescue group, even though he could not verify that his instructions for an examination by a Department veterinarian had been followed. 23. Mr. Taylor testified that, shortly after he released the dogs, he discovered that they had not yet been examined by a veterinarian. He reported this fact to Dr. Carlton, who told him that there was no problem, since the dogs were en route to a veterinarian. 24. Mr. Taylor testified that the rescue group has since taken another 22 dogs for adoption. All of the dogs were checked by the Department’s veterinarians before being released to the rescue group. Mr. Taylor feels that the rescue group may not have accepted these 22 dogs if he hadn’t cooperated with them in the release of the first four dogs. Ruling #117 25. Mr. Reinertson testified that, on October 11, 2007, during normal operations, one of the racing stewards at TGP went to the Racing Secretary’s office with a question. The steward found Dave Sample marking grey cards, one of the duties of the Racing Secretary or Assistant Racing Secretary. 26. Mr. Sample was licensed as a Mutual Teller but not as a Racing Secretary or Assistant Racing Secretary. 27. Mr. Reinertson testified that, anytime a permittee wants an employee to perform a racing official’s duty, the permittee must get permission from the Department by having the employee properly licensed in the proper category. If the employee is performing the duties of two officials, he must be licensed in both categories. 28. Mr. Reinertson testified that, originally, the Stewards were going to impose a fine of $250 against Mr. Taylor for this infraction, which is the normal fine for allowing someone to act outside of his licensed capacity. But, because TGP’s Racing Secretary Mr. Larriva also took responsibility for the infraction, the stewards fined Mr. Taylor and Mr. Larriva $125 apiece for their shared responsibility for the infraction. 29. Mr. Taylor testified that, in the past, TGP did not formally associate with the University of Arizona (“U of A”). However, he was approached by the dean of the U of A racing program to put together an internship for students who were interested in a career in the racing industry. Mr. Taylor received four resumes from students for the internship, including Mr. Sample’s. 30. Mr. Taylor testified that Mr. Sample had been licensed as a mutual teller six months before he started the internship. He did not want to use Mr. Sample as a mutual teller. Mr. Sample was more interested in horse racing than dog racing but had hoped his experience at TGP would transfer. He also wanted to experience many different areas at TGP, not all of which require licenses. Mr. Taylor decided to use Mr. Sample in the Racing Secretary’s office on Thursday afternoons as part of his internship. 31. Mr. Taylor testified that he did not know that Mr. Sample needed to be licensed in two different areas to help out in the Racing Secretary’s office. He will not repeat this violation. CONCLUSIONS OF LAW These matters lie within the Department’s jurisdiction.[1] The Department bears the burden of proof and must establish cause to penalize Mr. Taylor’s license by a preponderance of the evidence.[2] “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[3] A preponderance of the evidence is “[t]he greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”[4] As a Department licensee, Mr. Taylor is required to know and follow applicable rules.[5] The Department has required that “[a] licensee who is employed in more than one category or who changes from one category to another shall be licensed in each category.”[6] The Department has authorized duly licensed stewards to enforce its rules and statutes, to interpret rules, to regulate and control the conduct of all track officials, to conduct hearings, and, if they find violations of rule or statute, to impose a civil penalty of no more than $1,000 per violation.[7] The Department has established that Mr. Taylor violated A.A.C. R19-2- 306(F)(1) by allowing Mr. Sample to perform a Racing Secretary’s duties when Mr. Sample was not licensed in that capacity. The $125 fine that the stewards imposed for this violation was not excessive. As noted above, stewards are authorized to enforce statutes and rules, not Department policies.[8] Applicable statute required the Department to “[a]dopt rules governing the proper and humane methods for the disposition and transportation of dogs by breeders, kennels, and others.”[9] The stewards’ ruling #119 did not charge Mr. Taylor with any violation of rule when he released the four greyhound dogs to the rescue group from TGP without first having the dogs examined by a Department veterinarian. In addition, Mr. Taylor credibly testified that the rescue group representatives told him that all four dogs would be taken to a veterinarian to be spayed or neutered, as the Department later confirmed.[10] Even if the stewards could enforce a Department policy by fining a license, Mr. Taylor established that, at worst, he committed only a technical violation of the policy because, when he released the four dogs, he knew that they were on their way to a veterinarian’s office for an examination and sterilization procedure. RECOMMENDED ORDER Based on the foregoing, it is recommended that the Director of the Department affirm the stewards’ finding that Mr. Taylor violated A.A.C. R19- 2-306(F)(1) and their imposition of a $125 fine against his license in Ruling #117. It is further recommended that the Director of the Department rescind the imposition of a $250 fine in Ruling #119 and issue a warning to Mr. Taylor for his technical violation of Department policy. Done this day, January 30, 2008.

______________________________________ Diane Mihalsky Administrative Law Judge

Original transmitted by mail this ____ day of January, 2008, to:

Department of Racing Geoffrey Gonsher, Director 1110 W. Washington, Suite 260 Phoenix, AZ 85007

By ___________________________ ----------------------- [1] See A.R.S. § 5-104(A) and (T). [2] See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119; see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). [3] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [4] Black’s Law Dictionary at page 1220 (8th ed. 1999). [5] See A.A.C. R19-2-306(C). [6] A.A.C. R19-2-306(F)(1). [7] See A.A.C. R19-2-309(E)(2), (3), (3)(d), (3)(f), (6) and (6)(k). [8] Cf. A.A.C. R19-2-309(E)(2). [9] A.R.S. § 5-104(A)(5). [10] Although Dr. Carlton’s memorandum states that there was uncertainty about plans for two of the released dogs, Dr. Carlton did not testify at the hearing and his memorandum is hearsay. See Ariz. R. Evid. 801. Hearsay may be admitted in an administrative hearing. See A.R.S. § 41- 1092.07(F)(1). Hearsay should not be relied upon if it is unreliable or not the kind of evidence that reasonable persons would rely upon in serious matters. See Plowman v. Arizona State Liquor Board, 152 Ariz. 331, 337, 732 P.2d 222, 228 (App. 1986) (citing Begay v. Arizona Department of Economic Security, 128 Ariz. 407, 626 P.2d 137 (App. 1981).

-----------------------

Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826