STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
STATE OF FLORIDA, DEPARTMENT OF ) BUSINESS REGULATION, DIVISION OF ) PARI-MUTUEL WAGERING, )
)
Petitioner, )
)
vs. ) CASE NO. 79-228
)
FRANK RUDOLPH SOLIMENA, )
)
Respondent. )
)
)
RECOMMENDED ORDER
Pursuant to notice, a hearing was held before Charles C. Adams, a Hearing Officer with the Division of Administrative Hearings. The hearing was conducted on June 12, 20 and 21, 1979, In Room 272, State Office Building, 1350 N.W. 12th Avenue, Miami, Florida.
APPEARANCES
For Petitioner: William S. Frates, Esquire
Frates, Floyd, Pearson, Stewart, Richman & Greer, P.A.
One Biscayne Tower, 25th Floor Miami, Florida 33131
Special Counsel for Petitioner
David M. Maloney, Esq.
Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
For Respondent: Joel S. Fass, Esquire
Colodny and Fass
626 Northeast 124th Street North Miami, Florida 33181
ISSUES
The petitioner has accused the Respondent, Frank Rudolph Solimena, of violations of Rule 7E-1.06(11)(a), Florida Administrative Code, which reads:
(11)(a) The running of a horse in a race with any narcotic, stimulant, depressant or local anesthetic is prohibited. If the stewards
shall find that any narcotic, stimulant, depressant or local anesthetic has been administered or attempted to be administered
internally or eternally, to a horse before a race, such stewards shall impose such punishment and take such other action as they may deem proper under any of rules, including reference to the Division, against every person found by them to have administered, or to have attempted to administer, or to have caused to be administered, or to have caused an attempt to administer, or to have conspired with another person to administer, such narcotic, stimulant, depressant or local anesthetic. If the Division laboratory shall find a positive identification of any such medication, such finding shall constitute prima facie evidence that such horse raced with the medication in its system.
Under those accusations, the Respondent is made responsible pursuant to the provisions of Rule 7E-1.18(3), Florida Administrative Code, which indicates that, "The trainer shall he responsible for and be the insurer of the conditions of the horses he enters. Trainers are presumed to know the roles of the Division." The factual allegations in the Notice to Show Cause (Administrative Complaint) accuse the Respondent with entering horses in five separate races at Calder Race Course during the period October 6, 1978, through October 30, 1978, in which the Respondent was involved as a trainer of the various horses. The accusation further states that on each occasion subsequent to the conclusion of the race, a urine specimen was taken from each horse and subsequent laboratory analysis revealed that the urine sample contained Despropionyl Fentanyl, which is classified as the derivative of Fentanyl, a narcotic.
FINDINGS OF FACT
This cause comes on for consideration based upon a Notice to Show Cause (Administrative Complaint) filed by the Petitioner, State of Florida, Department of Business Regulation, Division of Pari-Mutuel Wagering, against Frank Rudolph Solimena. At all times pertinent to the Notice to Show Cause, Frank Rudolph Solimena was the holder of license Nos. K-00257 and K-00863, issued by the Petitioner to the Respondent, Frank Rudolph Solimena, enabling Solimena to operate as horse trainer and horse owner, respectively, at the several race tracks located in the State of Florida.
The Petitioner, State of Florida, Department of Business Regulation, Division of Pari-Mutuel Wagering, is an agency of the State of Florida charged with the duty of the regulation of, among other things, the matters pertaining to thoroughbred horse racing in the State of Florida. The authority for such regulation is found in Chapter 550, Florida Statutes, and those rules promulgated to enforce the provisions of that chapter. Within that body of rules, are Rules 7E-1.06(11)(a) and 7E-1.18(3), Florida Administrative code, alluded to in the issues statement of this Recommended Order. Those rules as set out in the issues statement shall serve as a basis for determining the facts and reaching the legal conclusions necessary to formulate a decision in this matter and official recognition is taken of the aforementioned rules.
The facts in this case show that the Respondent, Frank Rudolph Solimena, was acting as a horse trainer on October 6, 1978, at the Calder Race Course in Broward County, Florida. On that date, Myth Master, a horse trained by the Respondent, ran in the second race and finished in second position.
Following the race, and on the same date, a urine specimen was taken from the horse, Myth Master. That urine specimen was subsequently analyzed through a series of tests and the test directed to the urine sample revealed a positive identification of a substance known as Despropionyl Fentanyl, which is classified as a derivative of Fentanyl, a narcotic. The process which occurred in Myth Master after he received the Fentanyl, was that the Fentanyl was metabolized in the horse's system to become Despropionyl Fentanyl, and that latter substance acted as a central nervous system stimulant in the horse during the course of the race. The narcotic Fentanyl, carries the trade name, Sublimaze.
The facts in this case show that the Respondent, Frank Rudolph Solimena, was acting as a horse trainer on October 13, 1978, at the Calder Race Course in Broward County, Florida. On that date, Turbine Powered, a horse trained by the Respondent, ran in the fourth race and finished in second place. Following the race, and on the same date, a urine specimen was taken from the horse, Turbine Powered. That urine specimen was subsequently analyzed through a series of tests and the test directed to the urine sample revealed a positive identification of a substance known as Despropionyl Fentanyl, which is classified as a derivative of Fentanyl, a narcotic. The process which occurred in Turbine Powered after he received the Fentanyl, was that the Fentanyl was metabolized in the horse's system to become Despropionyl Fentanyl, and that latter substance acted as a central nervous system stimulant in the horse during the course of the race. The narcotic Fentanyl, carries the trade name, Sublimaze.
The facts in this case show that the Respondent, Frank Rudolph Solimena, was acting as a horse trainer on October 26, 1978, at the Calder Race Course in Broward County, Florida. On that date, Myth Master, a horse trained by the Respondent, ran in the tenth race and finished in second place. Following the race, and on the same date, a urine specimen was taken from the horse, Myth Master. That urine specimen was subsequently analyzed through a series of tests and the test directed to the urine sample revealed a positive identification of a substance known as Despropionyl Fentanyl, which is classified as a derivative of Fentanyl, a narcotic. The process which occurred in Myth Master after he received the Fentanyl, was that that Fentanyl was metabolized in the horse's system to become Despropionyl Fentanyl, and that latter substances acted as a central nervous system stimulant in the horse during the course of the race. The narcotic, Fentanyl, carries the trade name, Sublimaze.
The facts in this case show that the Respondent, Frank Rudolph Solimena, was acting as a horse trainer on October 28, 1978, at the Calder Race Course in Broward County, Florida. On that date, Ladrillazo, a horse trained by the Respondent, ran in the sixth race and finished in first place. Following the race, and on the same date, a urine specimen was taken from the horse, Ladrillazo. That urine specimen was subsequently analyzed through a series of tests and the test directed to the urine sample revealed a positive identification of a substance known as Despropionyl Fentanyl, which is classified as a derivative of Fentanyl, a narcotic. The process which occurred in Ladrillazo after he received the Fentanyl, was that that Fentanyl was metabolized in the horse's system to become Despropionyl Fentanyl, and that latter substances acted as a central nervous system stimulant in the horse during the course of the race. The narcotic, Fentanyl, carries the trade name, Sublimaze.
The facts in this case show that the Respondent, Frank Rudolph Solimena, was acting as a horse trainer on October 30, 1978, at the Calder Race Course in Broward County, Florida. On that date, Triple Rhythm, a horse trained by the Respondent, ran in the eighth race and finished in second place. Following the race, and on the same date, a urine specimen was taken from the horse, Triple Rhythm. That urine specimen was subsequently analyzed through a series of tests and the test directed to the urine sample revealed a positive identification of a substance known as Despropionyl Fentanyl, which is classified as a derivative of Fentanyl, a narcotic. The process which occurred in Triple Rhythm after he received the Fentanyl, was that that Fentanyl was metabolized in the horse's system to become Despropionyl Fentanyl, and that latter substances acted as a central nervous system stimulant in the horse during the course of the race. The narcotic, Fentanyl, carries the trade name, Sublimaze.
Each of the horses referred to above was under the care and treatment of Carl J. Meyer, D.V.M., on the dates of the races in question. In addition to treating the horses that are the subject to this complaint, Dr. Meyer had treated other horses for which the Respondent was the trainer, beginning in 1976 and continuing through October of 1978.
One of the conditions for which the disputed horses reportedly received treatment was a condition described by Dr. Meyer as Myopathy, and this treatment form was administered to each of the questioned horses on the date of the disputed race event.
According to dr. Meyer, Myopathy is a treatment for muscle soreness and is a type of acupuncture in which needles are injected at pressure points over the sore muscles and authorized medications are injected into those muscle areas, to include ACTH, Steroids and Lasix.
When the Respondent received one of the billing statements from Dr. Meyer which indicated that horses that were being trained by the Respondent had been treated for Myopathy, the Respondent inquired of Dr. Meyer what Myopathy treatments consisted of. Dr. Meyer replied that you take a needle and put in certain pressure points in the muscle to relieve bursitis and/or pressure.
When questioned in the course of the hearing about further details of the treatment for Myopathy, Dr. Meyer was unable to give a satisfactory explanation of the origins of the treatment for Myopathy and literature related to that treatment which might have been published through research in veterinary medicine.
Within the same time frame that Dr. Meyer claimed to be treating the subject horses for Myopathy, he had purchased the substance, Sublimaze, and by his testimony stated that this narcotic had been used on horses other than those involved in this accusation. The use in the unrelated group of horses was as a pre-anesthetic agent and to treat colic conditions. He claimed to use 10 milligrams as a pre-anesthetic dose and as much as 25 milligrams over a period of time to control the colic condition.
The utilization of Sublimaze as a pre-anesthetic agent and for treatment for colic was disputed in the course of the hearing by the testimony of Dr. George Maylin, D.V.M., who also has a Ph.D. in pharmacology. At the time Dr. Maylin gave his testimony, he was an associate professor of toxicology at the New York State College of Veterinary Medicine, Cornell University, Ithica, New York. Dr. Maylin has done extensive research on the effect of Sublimaze as
a pre-anesthetic agent and concludes that it is not a predictable anesthetic agent, and that a 10 milligram dosage would not have a desired effect in its use as a pre-anesthetic agent. In dr. Maylin's opinion, 50 milligrams would be the indicated amount. In addition, Dr. Maylins' testing of Sublimaze in a colic model situation pointed out the ineffectiveness of Sublimaze as an analgesic in those colic cases. Finally, Dr. Maylin does not believe that 25 milligrams of Sublimaze over an extended period of time could be effective in treating the colic condition.
Other trainers had horses which had been treated by Dr. Meyer around the same time period as those horses of the Respondent, which are the subject of this hearing. Those trainers are Ohayneo Reyes and Edward E. Plesa. Both Reyes and Plesa questioned Dr. Meyer on the subject of Meyer injecting Sublimaze in their race horses. These questions were asked following accusations placed against those trainers for violations similar to those in the current case of the Respondent. The answers given to Reyes and Plesa by Dr. Meyer indicated that he had in fact injected the horses with Sublimaze, but he told them not to worry because the substance could not be detected.
Dr. Meyer also testified in the coarse of the hearing that he had placed wagers on some of the horses being treated for Myopathy.
An analysis of the evidence leads to the factual conclusion that Dr. Meyer infused each of the horses for which the Respondent stands accused through this Notice to Show Cause, with Sublimaze, otherwise identified as Fentanyl; and that he gave these injections under the guise of a treatment for Myopathy, when in fact the so-called treatment for Myopathy was a ruse to enable Dr. Meyer to administer the Sublimaze. Those acts by Dr. Meyer directed to the horses of the Respondent involved in this accusation, were unknown to the Respondent at the time the injections were administered and nothing that had transpired prior to those administrations placed the Respondent in the position of having reason to believe that Dr. Meyer was pursuing this course of conduct.
In summary, although the horses in question ran in the subject races while under the effects of Fentanyl, metabolized to become Despropionyl Fentanyl, it was not through any acts of the Respondent.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matters and the parties to this action.
Those horses named in the allegations of this Notice to Show Cause ran in the various races while under the influence of a narcotic and stimulant, namely, Despropionyl Fentanyl, a derivative of Fentanyl, a narcotic. Therefore, Rule 7E-1.06(11)(a), Florida Administrative Code, was violated and the Respondent can be guilty of the violation of that rule in view of the language Of Rule 7E-1.18(3), Florida Administrative Code, which makes the trainer responsible for his horses to the extent of being the insurer of the condition of horses he enters in a race. That latter rule also creates the presumption that the trainer knows the rules of the Division of Pari-Mutuel Wagering. See also Div. of Pari-Mutuel, Dept. of Business Regulation, State of Florida, v. Caple, 362 So.2d. 1350 (Fla. 1978).
The effect of the aforementioned rules and the Caple decision creates the condition of strict liability and the only question remaining is whether that concept should be applied in the ease, sub judice. The Caple case, supra,
at pages 1354 and 1355 contains the following language in discussing the concept of strict liability:
* * *
Whether a violation occurs as a result of the personal acts of the trainer, of persons under his supervision, or even of unknown third parties, the condition of licensure has been violated by the failure to provide adequate control, and the consequence of the default is possible suspension of the trainer's license or a fine.12/ We have no doubt that a rule which both conditions a license and establishes with specificity reasonable precautionary duties within the
competence of the licensee to perform is both reasonable and constitutional.
12/ The determination of whether and to what extent the trainer is to be penalized is discretionary with the track stewards. See note 2 above. It is possible that in exceptional cases involving acts totally beyond the trainer's control, as where there is clear evidence that protective measures have been frustrated by force, no punitive action will he taken. In any event, adminis- trative and judicial review are available to protect against a totally arbitrary or discriminatory exercise of the stewards' discretion, a contention not raised by Caple in this proceeding.
It can be seen that although the violation may he established through either the personal acts of the trainer, persons under his supervision or third parties unknown to him, the rule or rules which form the basis of that violation must do so by establishing with specificity reasonable precautionary duties and those duties must be within the competence of the licensee to perform. In this instance, it is not inappropriate to require the Respondent, Frank Rudolph Solimena, to be responsible for the condition of those horses named in the Notice to Show Cause at the time the horses were entered in the subject races, as a general proposition; but under these facts, the Respondent, Solimena, does not have the necessary competence to second guess the actions of Dr. Meyer in Dr. Meyer's treatment rendered to the horses on the race dates. Unlike the Caple case in which the responsibility of the trainer under Rule 7E-1.06(15) and (16), Florida Administrative Code, was to police his personal property, effects and premises against prohibited drugs and implements and to store acceptable drugs in a secure fashion, to accept the Petitioner's theory of the case, Solimena would be expected to vouch for the professional judgment of Dr. Meyer, something he is not competent to do. In addition, even if you take into account the explanation which Dr. Meyer gave to the Respondent concerning the treatment for Myopathy, this would not create sufficient competence on the part of Solimena to question Dr. Meyer's treatment or to become so suspicious that he would need to dismiss Dr. Meyer.
Had the Respondent been placed on notice about other positive tests for narcotics or stimulants on the fluid samples of horses for which the
Respondent was the trainer, prior to the running of the races that are here in dispute, or other suspicious events concerning narcotics or stimulants, dealing with the matters and actions of Dr. Meyer or others; then the Respondent should have investigated more carefully the reasons why those detections of events had occurred, to include scrutiny of what the treating veterinarian was prescribing for the Respondent's horses. Under that plan of action, treatments which did not seem appropriate should make the Respondent sufficiently suspicious to dismiss the veterinarian or be held accountable for the future improper conduct of that veterinarian. This hypothetical course of conduct following notification of a positive sample or other facts of a suspicious nature would be within the Respondent's competence to pursue and any abstinence would make him accountable for the veterinarian's improper conduct. There is, however, no duty on the part of the Respondent to interrogate Dr. Meyer at the time Dr. Meyer was administering treatment to the subject horses, absent other suspicious circumstances which were occurring at the time of the treatment.
Those suspicious circumstances were not present in the case of the treatment given to the horses in question, and it is concluded that Dr. Meyer injected all horses spoken of in the Notice to Show Cause, with a chemical substance, Fentanyl, which was later detected as a metabolite in the urine samples of the horses, in the form Despropionyl Fentanyl. These acts of injecting the horses were unknown to the Respondent and at the time that the injections took place, outside the Respondent's competence to detect and be held liable for. The Respondent reasonably believed that the horses were being given pre-race treatment which was authorized, when in fact this activity was subsequently determined to be related to the injection of Sublimaze.
After a full consideration of the facts herein, it is concluded as a matter of law that the Petitioner has failed to establish that the Respondent is guilty of a violation of Rule 7E-1.06(11)(a), Florida Administrative Code, as implemented by Rule 7E-1.18 (3), Florida Administrative Code, related to the horse, Myth Master, which ran in the second race at Calder Race Course and finished in second position on October 6, 1978; related to the horse, Turbine Powered, which ran in the fourth race at the Calder Race Course and finished in second position on October 13, 1978; related to the horse, Myth Master, which ran in the tenth race and finished in second position on October 26, 1978; related to the horse, Ladrillazo, which ran in the sixth race and finished in first place on October 28, 1978; and related to the horse, Triple Rhythm, which ran in the eighth race and finished in second place on October 30, 1978.
(The parties to this action have submitted proposed findings of fact, conclusions of law and a recommendation. These proposals have been reviewed prior to the rendition of this Recommended Order, and to the extent that the proposals are not inconsistent with the Recommended Order herein, they have been utilized in drafting the Recommended Order; to the extent that the proposals are inconsistent with the Recommended Order herein, they are hereby specifically rejected.)
It is recommended that the action through the Notice to Show Cause against the Respondent, Frank Rudolph Solimena, be DISMISSED.
DONE AND ENTERED this 23rd day of August, 1979, in Tallahassee, Florida.
CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301
(904) 488-9675
COPIES FURNISHED:
W. S. Frates, Esquire
Frates, Floyd, Pearson, Stewart, Richman & Greer, P.A.
One Biscayne Tower, 25th Floor Miami, Florida 33131
David M. Maloney, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
Joel S. Fass, Esquire Colodny and Fass
626 Northeast 124th Street North Miami, Florida 33181
================================================================= AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA DEPARTMENT OF BUSINESS REGULATION DIVISION OF PARI-MUTUEL WAGERING
STATE OF FLORIDA, DEPARTMENT OF BUSINESS REGULATION,
DIVISION OF PARI-MUTUEL WAGERING,
Petitioner,
vs. CASE NO. 79-228
FRANK RUDOLPH SOLIMENA,
Respondent.
/
FINAL ORDER
Pursuant to notice, a hearing was held before Charles C. Adams, a Hearing Officer with the Division of Administrative Hearings. The hearing was conducted on June 18, 20 and 21, 1979, in Room 272, State Office Building, 1350 N. W. 12th Avenue, Miami, Florida. The Division Director has reviewed the complete record in this matter.
APPEARANCES
William S. Frates, Esquire, Floyd, Pearson, Stewart, Richman & Greer, One Biscayne Tower, Twenty-fifth Floor, Miami, Florida 33131, special counsel for the Petitioner. David M. Maloney, Esquire, Department of Business Regulation, 725 South Bronough Street, Tallahassee, Florida 32301, for the Petitioner.
Joel S. Fass, Esquire, Colodny & Fass, 626 N. E. 124th Street, North Miami, Florida 33181.
ISSUE
The Petitioner has accused the Respondent, Frank Rudolph Solimena, with a violation of Rule 7E-1.06(11)(a) Florida Administrative Code, which reads:
"The running of a horse in a race with any narcotic, stimulant, depressant or local anesthetic is prohibited. If the stewards shall find that any narcotic, stimulant, depressant or local anesthetic has been administered or attempted to be administered, internally or externally, to a horse before a race, such stewards shall impose such punishment and take such other action as they may deem proper under any of the rules, including reference to the Division, against
every person found by them to have admini- stered, or to have attempted to administer, or to have caused to be administered, or to have caused an attempt to administer, or to have conspired with another person to administer, such narcotic, stimulant, depressant or local anesthetic. If the Division laboratory shall find a positive identification of such medication, such finding shall constitute prima facie evidence that such horse raced with the medication in its system."
Under the accusation, the Respondent is made responsible pursuant to the provisions of Rule 7E-1.18(3), Florida Administrative Code, referred to herein as the absolute insurer's rule, which provides that:
"The trainer shall be responsible for, and be the insurer of the condition of the horses he enters. Trainers are presumed to know the rules of the Division."
Specifically, Respondent Solimena is accused under facts that allege that during the period from October 6 through October 30, 1978 horses trained by the Respondent were entered and ran in five separate races at Calder race course.
Subsequent to each race a urine specimen was taken from each horse and that each specimen was analyzed by the Petitioner's laboratory. It is further alleged that the Division of Pari-Mutuel Wagering laboratory reported the results of the tests and that each report showed that each urine sample contained Despropionyl Fentanyl, which is classified as a derivative of Fentanyl, a narcotic compound.
FINDINGS OF FACT
This cause comes on for consideration based upon a Notice to Show Cause (Administrative Complaint) filed by the Petitioner, State of Florida, Department of Business Regulation, Division of Pari-Mutuel Wagering, against Frank Rudolph Solimena. At all times pertinent to the Administrative Complaint, Frank Rudolph Solimena was the holder of license numbers K-00257 and K-00803 issued by the Petitioner to the Respondent, Frank Rudolph Solimena, to operate as a horse trainer and horse owner for horses racing at the various race tracks located in the State of Florida.
The Petitioner, State of Florida, Department of Business Regulation, Division of Pari-Mutuel Wagering, is an agency of the State of Florida charged with the duty of the regulation of among other things, the matters pertaining to thoroughbred horse racing in the State of Florida. The authority for such regulation is found in Chapter 550, Florida Statutes, and those rules promulgated to enforce the provisions of that chapter. Included in the body of rules are Rules 7E-1.06(11)(a) and 7E-1.18(3), Florida Administrative Code, alluded to in the issue statement of this Order. Those rules as set out in the issue statement shall serve as a basis for determining the facts and reaching the legal conclusions necessary to formulate a decision in this matter and official recognition is taken of the aforementioned rules.
The facts in this case show that the Respondent, Frank Rudolph Solimena, was acting as a horse trainer on October 6, 1978, at the Calder Race Course in Dade County, Florida. On that date, Myth Master, a horse trained by
the Respondent, ran in the second race and finished in second position. Following the race, and on the same date, a urine specimen was taken from the horse, Myth Master. That urine specimen was subsequently analyzed through a series of tests and the test directed to the urine sample revealed a positive identification of a substance known as Despropionyl Fentanyl, which is classified as a derivative of Fentanyl, a narcotic. The process which occurred in Myth Master after he received the Fentanyl, was that the Fentanyl was metabolized in the horse's system to become Despropionyl Fentanyl, and that latter substance acted as a central nervous system stimulant in the horse during the course of the race. The narcotic, Fentanyl, carried the trade name, Sublimaze.
The facts in this case show that the Respondent, Frank Rudolph Solimena, was acting as a horse trainer on October 13, 1978, at the Calder Race Course in Dade County, Florida. On that date, Turbine Powered, a horse trained by the Respondent, ran in the fourth race and finished in second place. Following the race, and on the same date, a urine specimen was taken from the horse, Turbine Powered. That urine specimen was subsequently analyzed through a series of tests and the test directed to the urine sample revealed a positive identification of a substance known as Despropionyl Fentanyl, which is classified as a derivative of Fentanyl, a narcotic. The process which occurred in Turbine Powered after he received the Fentanyl, was that the Fentanyl was metabolized in the horse's system to become Despropionyl Fentanyl, and that latter substance acted as a central nervous system stimulant in the horse during the course of the race. The narcotic, Fentanyl, carries the trade name, Sublimaze.
The facts in this case show that the Respondent, Frank Rudolph Solimena, was acting as a horse trainer on October 26, 1978, at the Calder Race Course in Dade County, Florida. On that date, Myth Maste, a horse trained by the Respondent, ran in the tenth race and finished in second place. Following the race, and on the same date, a urine specimen was taken from the horse, Myth Master. That urine specimen was subsequently analyzed through a series of tests and the test directed to the urine sample revealed a positive identification of a substance known as Despropionyl Fentanyl, which is classified as a derivative of Fentanyl, a narcotic. The process which occurred in Myth Master after he received the Fentanyl, was that the Fentanyl was metabolized in the horse's system to become Despropionyl Fentanyl, and that latter substance acted as a central nervous system stimulant in the horse during the course of the race.
The narcotic, Fentanyl, carries the trade name, Sublimaze.
The facts in this case show that the Respondent, Frank Rudolph Solimena, was acting as a horse trainer on October 28, 1978, at the Calder Race Course in Dade County, Florida. On that date, Ladrillazo, a horse trained by the Respondent, ran in the sixth race and finished in first place. Following the race, on the same date, a urine specimen was taken from the horse, Ladrillazo. That urine specimen was subsequently analyzed through a series of tests and the test directed to the urine sample revealed a positive identification of a substance known as Despropionyl Fentanyl, which is classified as a derivative of Fentanyl, a narcotic. The process which occurred in Ladrillazo after he received the Fentanyl, was that the Fentanyl was metabolized in the horse's system to become Despropionyl Fentanyl, and that latter substance acted as a central nervous system stimulant in the horse during the course of the race.
The narcotic, Fentanyl, carries the trade name, Sublimaze.
The facts in this case show that the Respondent, Frank Rudolph Solimena, was acting as a horse trainer on October 30, 1978, at the Calder Race
Course in Dade County, Florida. On that date, Triple Rhythm, a horse trained by the Respondent, ran in the eighth race and finished in second place. Following the race, and on the same date, a urine specimen was taken from the horse, Triple Rhythm. That urine specimen was subsequently analyzed through a series of tests and the test directed to the urine sample revealed a positive identification of a substance known as Despropionyl Fentanyl, which is classified as a derivative of Fentanyl, a narcotic. The process which occurred in Triple Rhythm after he received the Fentanyl, was that the Fentanyl was metabolized in the horse's system to become Despropionyl Fentanyl, and that latter substance acted as a central nervous system stimulant in the horse during the course of the race. The narcotic, Fentanyl, carries the trade name, Sublimaze.
Each of the horses referred to above was under the care and treatment of Carl J. Meyer, D.V.H., on the dates of the races in question. In addition to treating the horses that are subject of this complaint, Dr. Meyer had treated other horses for which the Respondent was the trainer, beginning in 1976 and continuing through October of 1978.
One of the conditions for which the disputed horses reportedly received treatment was a condition described by Dr. Meyer as Myopathy, and this treatment form was administered to each of the questioned horses on the date of the disputed race event.
According to Dr. Meyer, Myopathy is a treatment for muscle soreness and is a type of acupuncture in which needles are injected at pressure points over the sore muscles and authorized medications are injected into those muscle areas, to include ACTH, Steroids and Lasix.
Dr. Meyer testified that the Respondent inquired of Dr. Meyer at an unstated time what Myopathy treatments consisted of and Dr. Meyer replied that you take a needle and put it in certain pressure points in the muscle to relieve bursitis and/or pressure. (The Hearing Officer's finding of fact, that such inquiry occurred "When the Respondent received one of the billing statements from Dr. Meyer which indicated that horses that were being trained by the Respondent had been treated for myopathy" is specifically rejected as not being supported by competent substantial evidence. See (T484).)
When questioned in the course of the hearing about further details of the treatment for Myopathy, Dr. Meyer was unable to give a satisfactory explanation of the origins of the treatment for Myopathy and literature related to that treatment which might have been published through research, in veterinary medicine.
Within the same time frame that Dr. Meyer claimed to be treating the subject horses for Myopathy, he had purchased the substance, Sublimaze, and by his testimony stated that this narcotic had been used on horses other than those involved in this accusation. The use of the unrelated group of horses was as a pre-anesthetic agent and to treat colic conditions. He claimed to use 10 milligrams as a pre-anesthetic dose and as much as 25 milligrams over a period of time to control the colic condition.
The utilization of Sublimaze as a pre-anesthetic agent and for treatment of colic was disputed in the course of the hearing by the testimony of Dr. George Maylin, D.V.M., who also has a Ph.D. in pharmacology. At the time Dr. Maylin gave his testimony, he was an associate professor of toxicology at New York State College of Veterinary Medicine, Cornell University, Ithica, New
York. Dr. Maylin has done extensive research on the effect of Sublimaze as a pre-anesthetic agent and concluded that it is not a predictable anesthetic agent, and that a 10 milligram dosage would not have a desired effect in its use as a pre-anesthetic agent. In Dr. Maylin's opinion, 50 milligrams would be the indicated amount. In addition, Dr. Maylin's testing of Sublimaze in a colic model situation pointed out the ineffectiveness of Sublimaze as an analgesic in those colic cases. Finally, Dr. Maylin does not believe that 25 milligrams of Sublimaze over an extended period of time could be effective in treating the colic condition.
Other trainers had horses which had been treated by Dr. Meyer around the same time period as those horses of the Respondent, which are the subject of this hearing. Those trainers are Ohayneo Reyes and Edward E. Plesa. Both Reyes and Plesa questioned Dr. Meyer on the subject of Meyer injecting Sublimaze in their race horse. These questions were asked following accusations placed against those trainers for violations similar to those in the current case of the Respondent. The answers given to Reyes and Plesa by Dr. Meyer indicated that he had in fact injected the horses with Sublimaze, but he told then not to worry because the substance could not be detected.
Dr. Meyer also testified in the course of the hearing that he bad placed wagers on some of the horses being treated for Myopathy.
An analysis of the evidence leads to the factual conclusion that Dr. Meyer infused each of the horses for which the Respondent stands accused through this Notice to Show Cause, with Sublimaze, otherwise identified as Fentanyl; and that he gave these injections under the guise of a treatment for Myopathy, when in fact the so-called treatment for Myopathy was a ruse to enable Dr. Meyer to administer the Sublimaze.
Dr. Meyer has treated horses trained by Respondent Solimena since 1976. (T403). During 1978 Dr. Meyer treated Respondent's horses for Myopathy and Respondent knew of this and was billed for such treatments. (T485). Further, Respondent Solimena knew that Dr. Meyer was treating his horses and injecting his horses on the day of the races, October 6, 13, 26, 28 and 30, 1978. (T171-172).
The Hearing Officer's findings of fact, quoted below, found on page 7 of the Recommended Order, is specifically rejected as not being based on substantial competent evidence. In particular, Respondent Solimena, when called as a witness by Petitioner, invoked his constitutional privilege against self incrimination (T62-67) and refused to answer each and every question put to him including whether he was present or observed any of the horses in question being injected with any substance and/or narcotic (T65-66) whether Dr. Meyer injected any such substance in the horses in question (T66-67) whether Dr. Meyer advised Respondent that he had injected any or all of the horses in question with Sublimaze (T-67) whether Respondent asked Dr. Meyer if he injected any of the horses in question with Sublimaze (T-67) and whether Respondent of his own knowledge knew that a narcotic was injected into any or all of the horses in question (T-67). Additionally, the record discloses that Respondent knew that Dr. Meyer had been treating his horses all during 1978 for Myopathy and had been billed for each such treatment. (T485)
"Those acts by Dr. Meyer directed to the horses of the Respondent involved in this accusation were unknown to the Respondent at the time the injections were administered and
nothing that had transpired prior to those administrations placed the Respondent in the position of having reason to believe that Dr. Meyer was pursuing this course of conduct.
In summary, although the horses in question ran in the subject races while under the effects of Fentanyl, metabolized to become Despropionyl Fentanyl, it was not through any acts of the Respondent." (P.7 of the Recommended Order)
CONCLUSIONS OF LAW
The Division of Pari-Mutuel Wagering has jurisdiction over the subject matters and the parties to this action.
Those horses named in the allegations of this Notice to Show Cause ran in the various races while under the influence of a narcotic and stimulant, namely, Despropionyl Fentanyl, a derivative of Fentanyl, a narcotic. Therefore, Rule 7E-1.06(11)(a), Florida Administrative Code, was violated and the Respondent is guilty of five separate violations of that rule in view of the language of Rule 7E-1.18(3), Florida Administrative Code, which makes the trainer responsible for his horses to the extent of being the insurer of the condition of horses he enters in a rare. See also Division of Pari-Mutuel Wagering, Dept. of Business Regulation, State of Florida, v. Caple, 362 So2d. 1350 (Fla. 1978)
The effect of the aforementioned rules and the Caple decision creates a condition of strict liability. In Caple, the Florida Supreme Court held:
"To protect, the integrity of this unique (pari-mutuel wagering) industry it is really immaterial whether 'guilt' should be ascribed either directly or indirectly to the trainer. The rules were designed and reasonably so, to condition the grant of a trainer's acceptance of an absolute duty to ensure compliance with reasonable regulation governing the area
over which the trainer has responsibility." (supra at 1354)
In reaching this decision the Court quoted with approval the following: "(I)t is not unreasonable, arbitrary or
capricious to provide that the trainer guarantee the condition of a horse running in a race upon the results of which there is wagering. Sandstrom v. California Horse- racing Bd., 31 Cal.2d 401, 411-412, 189P.2d
17, 23, cert. denied, 335 U.S. 814, 69 S.Ct.
31, 93 L.Ed. 369 (1948).
Conceding that the rule...is harsh and may, in some instances, result in injustice to innocent people, we think the rule can be justified on the grounds of public policy,
because it is the only effective means by which fraud and deceit in connection with horseracing can be minimized. State ex rel Morris v. West Va. Racing Commission, 133 W.Va. 178, 202-3, 55 p.E.2d. 263, 274-75
(1949)
Horseracing, at its best, is difficult to control, and would be practically impossible to regulate if every governing rule and regulation was made dependent for validity upon the knowledge or motives of the person charged with a violation .... Manifestly, it would be almost impossible to prove guilty knowledge or intent in cases of this kind, and the futility of prosecutions under a rule requiring probative evidence of guilty knowledge and intent would eventually leave the public interest and welfare to the mercy of the unscrupulous. Fogt v. Ohio State Racing Comm. 3 Ohio App. 2d Th2-3, 426, 210
N.E. 2d 730, 733 (1965). (Supra at 1353,
1354)."
The Court thereupon concluded:
Whether a violation occurs as a result of the personal acts of the trainer, of persons under his supervision, or even of unknown third parties, the condition of licensure has been violated by the failure to provide adequate control, and the consequence of the default is possible suspension of the trainer's license or a fine.... It is now well established that in areas of activity requiring strong police regulation to protect public interests, strict liability may be imposed upon persons "otherwise innocent but standing in responsible relation to a public danger. United States v. Dotterweich, 320 U.S. 277, 281, 64 S.Ct. 134, 88 L.Ed. 48
(1943). Horse racing is such an area of activity. Western Turf Association v.
Greenberg. 204 U.S. 359, 27 S.Ct. 384, 51
L.Ed. 520 (1907).... In the interest of protecting both the health of thoroughbred horses and the integrity of the sport from which the state derives revenues, the state has a valid objective in seeking to prevent drugging of race horses. An absolute insurer rule for horse trainers represents a reasonable and valid exercise of the state's police power to achieve that objective. (Supra at 1354, 1355)."
Consequently, in the instant matter, the horses trained by Frank Rudolph Solimena, who at all times material was duly licensed by the State of
Florida to operate as a trainer, did run in the following races at Calder, Myth Master 3rd race on October 6, 1978; Turbine Powered - 4th race on October 13, 1978; Myth Master - 10th race on October 26, 1978; Ladrillazo - 6th race on October 28, 1978 and Triple Rhythm - 8th race on October 30, 1978, with Despropionyl Fentanyl, a narcotic and central nervous system stimulant, in their system. Since Rule 7E-1.06(11)(a) of the Florida Administrative Code prohibits the running of a horse in any race with any narcotic or stimulant and since regulation 7E-1.18(3) of the Florida Administrative Code makes the trainer the absolute insurer of the condition of any horse he enters, the Respondent is guilty of running illegally drugged horses in the said races at Calder on October 6, 13, 26, 28 and 30, 1978.
CONCLUSION
Frank Rudolph Solimena is found to have violated on five separate occasions Regulations 7E-1.18(3) and 7E-1.06(11)(a) of the Florida Administrative Code and shall be declared ineligible for licensing for three (3) years from July 1, 1979 and, in addition, be fined the sum of $5,000.00.
DONE AND ENTERED this 9th day of October, 1979, in Miami, Florida.
GARY R. RUTLEDGE
Director
Division of Pari-Mutuel Wagering
I HEREBY CERTIFY that a true and correct copy of the foregoing Final Order was nailed to Frank Rudolph Solimena, 541 South Highlands Drive, Hollywood, Florida; Joel Fass, Esquire, Colodny and Fass, P.A., 626 N. E. 124th Street, North Miami, Florida 33161; William S. Frates, Esquire, Frates, Floyd, Pearson, Stewart, Richman & Greer, P.A., 25th Floor, One Biscayne Tower, Miami, Florida 33131, and David Maloney, Esquire, Department of Business Regulation, 219 Johns Building, 725 So. Bronough Street, Tallahassee, Florida 32301, this the 10th day of October, 1979.
GARY R. RUTLEDGE, Director
| Issue Date | Proceedings |
|---|---|
| Nov. 05, 1979 | Final Order filed. |
| Aug. 23, 1979 | Recommended Order sent out. CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Oct. 09, 1979 | Agency Final Order | |
| Aug. 23, 1979 | Recommended Order | Respondent is not an expert in veterinarian medicine and is therefore not liable for act of his veterinarian in giving illegal drugs to his racehorses. |
