Ruling on greyhound drug case could lead to dismissal of others

A Florida judge has declared that the lack of a formal rule on the methods used to test racing greyhounds for drugs violated state statutes, and in doing so, the ruling invalidated two major cocaine cases.

It's a ruling that animal rights advocates worry could result in the dismissal of all pending greyhound drug cases.

Judge Lawrence Stevenson’s Dec. 22 partial summary final order favored Charles McClellan and Natasha Nemeth, two dog trainers at Best Bet Orange Park in Jacksonville who had their training licenses suspended after being cited for a combined 24 counts of cocaine metabolites during 2016 and 2017. Stevenson’s decision was based on a 2015 successful court case against the Florida Division of Pari-Mutuel Wagering, the entity that regulates greyhound racing.

The division’s urine collection and testing methods were based on a 2010 Greyhound Veterinary Assistant Procedures Manual. The 2015 court case found that those procedures constituted a rule, which under state law must be “properly adopted through formal rulemaking procedures.”

Because the division had not adopted a permanent rule for its urine collection procedures, the division was specifically ordered to discontinue using those procedures in 2015 after losing in court. Because after the 2015 case it didn’t do so, Stevenson ruled the drug tests were invalid.

The ruling was a victory for racing advocates who have long fought for testing reforms.

James Gartland, executive director of pro-racing group the National Greyhound Association criticized the division’s testing methods in a statement, calling them “a sloppy, careless mess of unadopted, unpublished and inconsistent procedures that produce unfair results.”

In the wake of the judge’s decision, the division, which did not respond to requests for comment, was left scrambling to find a fix. Citing an “immediate danger to the public health, safety or welfare,” the division adopted an emergency rule Dec. 27 that allowed it to continue drug tests.

“An emergency rule is necessary because the Division would be unable to test for many prohibited substances in greyhounds and be unable to take subsequent administrative action in cases where a prohibited substance is found in such an animal. Such substances would include performance enhancing substances, pain numbing substances, and others that could lead to potential injuries or death to the racing animals,” the rule states. “Further, the Division must be able to test for such substances in order to ensure legitimate and fair races and to protect the betting public.”

The emergency rule will remain in effect until the Legislature enacts a statute on drug testing or the division adopts a permanent rule, the latter of which could take more than a year.

And while the emergency rule resolves any future legal challenges, animal rights advocates like Carey Theil, executive director of Grey2K USA Worldwide, contend the current situation was preventable.

“This is an agency that had years to adopt a permanent rule on drug testing procedures,” Theil said. “They didn’t. This lawsuit was message from the greyhound industry to the state that the industry can push state regulators around.”

The division is asking the court to reconsider the ruling. While it did not comment on that matter, it sent a copy of its motion for reconsideration.

The division claims that while it did not adopt a rule for drug testing procedures it also was not using the 2010 manual in question and instructed employees on testing methods through on-the-job-training. It also maintains it was not given an opportunity to present evidence in court, despite previously being told it could. 

Theil said it was unlikely the court would rule in the division's favor.

“My opinion is, this is likely over,” Theil said. “I think the greyhound breeders won. I think the trainers will likely avoid discipline, which is shocking.”

Theil also said he believed the ruling would result in the dismissal of all pending greyhound drug violations. And records show drug abuse in in Florida's racing industry already is problematic.

Through public records requests, Grey2K compiled a list of racing drug violations spanning from 2007 to 2017. Nearly half of all the 847 drug violations occurred in Florida, which is home to 12 of the nation’s 18 dog-racing tracks. Among the more than 50 banned substances used to dope racing greyhounds were medications people take for asthma and bladder control, and a growth hormone used to bulk up pigs before slaughter, the report says.

In Daytona, 12 greyhound trainers have been cited for doping greyhounds with a host of banned substances including Novocaine, opiates and cocaine. Nationally, of the 71 cases of cocaine or a derivative, 68 — or 96 percent — were in Florida, which also led the nation for highest number of positives for almost all of the drugs greyhounds were tested for.

Grey2K’s data on Florida drug violations show more than 10 recent cases in which no rulings have been made, but Theil could not confirm if those cases were still were pending.

Another argument in the Jacksonville case maintains there are no “sensible” established thresholds for banned substances found in greyhounds in trace amounts. If Stevenson rules in favor of the industry, that could lead to more legal challenges down the road.

Ultimately, the fight over drugs may prove to be moot point. Currently, a proposed constitutional amendment that would ban greyhound racing in Florida by 2019 is being examined by the Constitution Revision Commission, which can put approved amendments directly on ballots for voter approval.