STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
STATE OF FLORIDA, DEPARTMENT OF ) BUSINESS REGULATION, DIVISION OF ) PARI-MUTUEL WAGERING, )
)
Petitioner, )
)
vs. ) CASE NO. 79-974
)
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 August 14, 1979, in Room 272, State Office Building, 1350 N.W. 12th Avenue, Miami, Florida.
APPEARANCES
For Petitioner: William S. Frates, Esquire
Special Counsel for Petitioner 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
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 ane- sthetic 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 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 per- son 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 con- stitute 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 be responsible for and
be the insurer of the conditions of the horse he enters. Trainers are presumed to know the rules of the Division."
The factual allegations in the Notice to Show Cause (Administrative Complaint) accuse the Respondent with entering the horse, Carpe Diem, in a race at Tropical Park, Inc., on December 4, 1978, while the Respondent was acting in the capacity of trainer. The accusation further states that on that occasion subsequent to the conclusion of the race, a urine specimen was taken from the horse and subsequent laboratory analysis revealed that the urine sample contained Dispropionyl 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 5-00863, 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 December 4, 1978, at Tropical Park, Inc., in Florida. On that date, Carpe Diem, a horse trained by the Respondent, ran in the second race and finished in first position. Following the race, and on the same date, a urine specimen was taken from the horse, Carpe Diem. 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 Dispropionyl Fentanyl, which is classified as a derivative of Fentanyl, a narcotic. The process which occurred in Carpe Diem after he received the Fentanyl, was that the Fentanyl was metabolized in the horse's system to become Dispropionyl 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 horse referred to above was under the care and treatment of Carl J. Meyer, D.V.M., on the date of the race in question. In addition to treating this horse that is the subject of this complaint, Dr. Meyer had treated other horses for which the Respondent was the trainer, beginning in 1976 and continuing through December, 1978.
One of the conditions for which the disputed horse and other horses trained by the Respondent reportedly received treatment was a condition described by Dr. Meyer as Myopathy. 1/ This treatment form was administered to Carpe Diem on the date of the disputed race event.
According to Dr. Meyer, Myopathy is a treatment for muscle soreness and is a type 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, Stroids 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 at that point told the Respondent that you take a needle and put it 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 horse for Myopathy, he had purchased the substance, Sublimaze, and by his testimony stated that this narcotic had been used on horses other than the one 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 18 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 bearing 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 the use of pre-anesthetic cases. In Dr. Maylin's opinion, 50 milligrams would be the indicated amount. In addition, Dr. Maylin's extensive 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 the horse of the Respondent, which is 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. Those 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 course 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 Carpe Diem, for which the Respondent stands accused through this Notice to Show Cause, with Sublimaze, otherwise identified as Fentanyl, and that he gave those 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. This act by Dr. Meyer directed to the horse of the Respondent involved in this accusation, was unknown to the Respondent at the time the injection was administered and nothing that had transpired prior to this placed Respondent in the position of having reason to believe that Dr. Meyer was pursuing this course of conduct.
In summary, although the horse in question ran in the subject race while under the effects of Fentanyl, metabolized to become Dispropionyl Fentanyl, it was not through an act of the Respondent.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this cause.
The horse named in the allegation of this Notice to Show Cause ran in the various race while under the influence of a narcotic and stimulant, namely, Dispropionyl 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 be 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 Wagering, etc. 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 case, 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 pre- cautionary 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 dis- cretionary with the track stewards. See
note 2 above. It is possible that in except- ional 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 be taken. In any event, administrative 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 be 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 the horse named in the Notice to Show Cause at the time the horse was entered in the subject race, 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 horse on the race date. 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 race that is 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 these detections of events had occurred, to include scrutiny of what the treating veterinarian was prescribing for the Respondent's horse. 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 horse, 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 horse in question, and it is concluded that Dr. Meyer injected Carpe Diem with a chemical substance, Fentanyl, which was later detected as a metabolite in the urine sample of the horse, in the form Dispropionyl Fentanyl. This act of injecting the horse was unknown to the Respondent and at the time that the injection took place, outside the Respondent's competence to detect and be held liable for. The Respondent reasonably believed that the horse was 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 laid 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 7E-1.18(3), Florida Administrative Code, related to the horse, Carpe Diem, which ran in the second race at Tropical Park, Inc., and finished in first position on December 4, 1978.
It is recommended that the action through the Notice to Show Cause against the Respondent, Frank Rudolph Solimena, be DISMISSED.
DONE AND ENTERED this 10th day of September, 1979, in Tallahassee, Florida.
CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32381
(904) 488-9675
ENDNOTE
1/ Some of the other horses who received treatment for Myopathy are the subject of similar accusations in which Recommended Orders have been or are being entered contemporaneously with this Recommended Order and the case numbers are
D.O.A.H. 79-228 and 79-973, respectively. The facts related to the companion cases have been taken into account in entering the Recommended Order herein.
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 32381
Joel S. Fass, Esquire
626 Northeast 124th Street North Miami, Florida 33181
================================================================= AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
STATE OF FLORIDA, DEPARTMENT
OF BUSINESS REGULATION DIVISION OF PARI-MUTUEL WAGERING,
Petitioner,
vs. CASE NO. 79-974
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 August 14, 1979, in the State Office Building, 1350 North West 12th Avenue, Miami, Florida. The Division Director has reviewed the complete record in this matter.
APPEARANCES
For Petitioner: David M. Maloney, Staff Attorney
Department of Business Regulation
219 Johns Building
725 South Bronough Street Tallahassee, Florida 33181
For Respondent: Joel Fass, Esquire
Colodny & Fass, P.A.
626 Northeast 124th Street North Miami, Florida 33181
STATEMENT OF THE 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 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 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 on November 29, 1978 a horse trained by the Respondent was entered and ran in the sixth (6th) race at Tropical Park, Inc. (at Calder Race Couse). Subsequent to the race a urine specimen was taken from the horse and the 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 test and that the report showed that the 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, 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-00863 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 7F-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 November 29, 1978, at Tropical Park, Inc. (at Calder Race Course) in Dade County, Florida. On that date, Foxy T.V., a horse trained by the Respondent, ran in the sixth (6th) race and finished in the first position. Following the race, and on the same date, a urine specimen was taken from the horse, Foxy T.V. 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 Foxy T.V. 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 horse referred to above was under the care and treatment of Carl J. Meyer, D.V.M., on the date of the race in question. In addition to treating the horse that is the subject of this complaint, Dr. Meyer had treated other horses for which the Respondent was the trainer, beginning in 1976 and continuing through December of 1978.
One of the conditions for which the disputed horse reportedly received treatment was a condition described by Dr. Meyer as Myopathy, and this treatment form was administered to the questioned horse 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 authorize medications are injected to those muscle areas, to include ACTH, Steriods 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.)
When questions 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 horse for Myopathy, he had purchased the substance, Sublimaze, and by his testimony stated that this narcotic had been used on horses other than this one 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 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 the horse of the Respondent, which is 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 them not to worry because the substance could not be detected.
Dr. Meyer also testified in the course 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 the horse 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 treated horses trained by Respondent Solimena since 1976. During 1978 Dr. Meyer treated Respondent's horses for Myopathy and Respondent knew of this was billed for such treatments. Further, Respondent Solimena knew that Dr. Meyer was treating his horses and injecting his horse on the day of the race, November 29, 1978.
The Hearing Officer's findings of fact, quoted below, found on page 5 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 and refused to answer each and every question put to him including whether he was present or observed the horse in question being injected with any substance and/or narcotic, whether Dr. Meyer injected any such substance in the horse in question; whether Dr. Meyer advised Respondent that he had injected the horse in question with Sublimaze; whether Respondent asked Dr. Meyer if he injected the horse in question with Sublimaze; and whether Respondent of his own knowledge knew that a narcotic was injected into the horse in question. Additionally, the record discloses that Respondent knew that Dr. Meyer had been teating his horse all during 1978 for Myopathy and had been billed for each such treatment.
This act by Dr. Meyer directed to the horse of the Respondent involved in this accusation was unknown to the Respondent at the time the injection was administered and nothing that had transpired prior to that administration placed the Respondent in the position of having reason to believe that Dr. Meyer was pursuing this course of conduct.
In summary, although the horse in
question ran in the subject race while under the effects of Fentanyl, metabolized to become Despropionyl Fentanyl, it was not through any act of the Respondent.
CONCLUSIONS OF LAW
The Division of Pari-Mutuel Wagering has jurisdiction over the subject matters and parties to this action.
The horse named in the allegation of this Notice to Show Cause ran in the race 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 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 horse to the extent of being the insurer of the condition of horses he enters in a race. See also Division of Pari-Mutuel Wagering, 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 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 treasonably so, to condition the grant of a trainer's acceptance of an absolute duty to ensure compliance with reasonable regulation
governing the areas 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 Horseracing 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. 179, 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 423, 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 drives 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 achiever that objective. (Supra at 1354, 1355).
Consequently, in the instant matter, the horse trained by Frank Rudolph Solimena, who at all times material was duly licensed by the Sate of Florida to operate as a trainer, did run in the following race at Tropical Park, Inc. (at Calder Race Course) in Dade County, Florida in the sixth (6th) race on November 29, 1978, with Despropionyl Fentanyl, a narcotic and central nervous system stimulant, in his 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 7E1.18(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 an illegally drugged horse in said race at Tropical (at Calder) on November 29, 1978.
CONCLUSION
Frank Rudolph Solimena is found to have violated Regulations 7E-1.18(3) and 7E-1.06(11)(a) of the Florida Administrative Code and shall be declared ineligible for licensing for six months to be added on to the three years and six months commencing July 1, 1979, entered in Order on October 9, 1979 and Order on November 14, 1979.
DONE AND ORDERED this 14th day of November, 1979, in Miami, Florida.
GARY R. RUTHLEGE, Director Division of Pari-Mutuel Wagering
I HEREBY CERTIFY that a true and correct copy of the foregoing Final Order was mailed to Frank Rudolph Solimena, 541 South Highlands Drive, Hollywood, Florida; Joel Fass, Esquire, Colodny and Fass, P.A., 626 Northeast 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, 291 Johns Building, 725 So. Bronough Street, Tallahassee, Florida 32301, this 14th day of November, 1979.
GARY R. RUTHLEGE, Director
| Issue Date | Proceedings |
|---|---|
| Nov. 26, 1979 | Final Order filed. |
| Sep. 10, 1979 | Recommended Order sent out. CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Nov. 14, 1979 | Agency Final Order | |
| Sep. 10, 1979 | Recommended Order | Dismiss complaint against Respondent for drug infraction on racehorse when he was deceived by veterinarian that the shot was for authorized pre-race physical. |
