STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA DEPARTMENT OF BUSINESS ) REGULATION, DIVISION OF )

PARI-MUTUEL WAGERING, )

)

Petitioner, )

)

vs. ) CASE NO. 80-817

)

CHARLES R. FEDERMAN, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was held before William E. Williams, Hearing Officer for the Division of Administrative Hearings, on July 24 and 24, 1980, and September 9, 1980, in Miami, Florida.

APPEARANCES

For Petitioner: David M. Maloney, Esquire

Department of Business Regulation

210 Johns Building

725 South Bronough Street Tallahassee, Florida 32301

For Respondent: Larry V. Bishins, Esquire

4548 North Federal Highway

Fort Lauderdale, Florida 33308 and

Arnold Lasky, Esquire 3510 Biscayne Boulevard

Miami, Florida 33137 ISSUES

In an administrative complaint entitled "Second Amended Notice to Show Cause" the Division of Pari-Mutuel Wagering ("Division" or "Petitioner") has charged Charles R. Federman ("Respondent") with violation of Rule 7E- 4.25(12)(a), Florida Administrative Code which provides:

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 caused to be administered, or to have caused an attempt to administer, or to leave 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.

The Second Amended Notice to Show Cause alleges that Respondent is in violation of the above-cited rule by virtue of the provisions of Rule 7E-4.05(3), Florida Administrative Code, which reads:

The trainer shall be responsible for and be the insuror of the condition of the horses he enters. Trainers are

presumed to know the rules of the Division.

The Second Amended Notice to Show Cause also charges Respondent with an alleged violation of Rule 7E-4.25(13), Florida Administrative Code, which provides:

The trainer, groom, and any other person having charge, custody, or care of the horse, are obligated properly to protect the horse and guard it against such administration or attempted administration and if the stewards shall find that any such person has failed to show proper protection and guarding of the horse,

they shall impose such punishment and take such other action as they may deem proper under any of the rules, including reference to the Division.

The Second Amended Notice to Show Cause alleges that Respondent was the trainer of a horse which, on November 28, 1979 raced in and won the ninth race at Pompano Park where Tourist Attractions, Inc. is licensed by the State of Florida to conduct harness horse racing. It is Further alleged that a urine specimen taken from the horse at the conclusion of the race was, upon analysis, found to contain the drug "butorphanol", which is alleged to be a "narcotic" and, in a horse, either a "depressant" or "stimulant". Respondent Federman is charged by the Division with responsibility for the racing of a drugged horse as the insuror of the horse's condition, and further charged with failure to properly protect and guard the horse from administration of the drug.

FINDINGS OF FACT

1. Petitioner is an agency of the State of Florida charged with the duty of regulating, among other things, the harness horse racing industry in the State of Florida.

2. On November 28, 1979, Charles Federman, holder of pari-mutuel trainer's license L-25378, trained and entered the standardbred horse, Hanker Chief, in the ninth race at Pompano Park in Florida, where Tourist Attractions, Inc., is licensed by the Florida Division of Pari-Mutuel Wagering to conduct horse racing. The horse ran in the race and won. Following the race a urine specimen was taken from the horse by Division personnel.

   
   

3. Following collection, the sample, was sealed and was placed in a locked refrigerator in the office of the detention barn where the samples are customarily stored until transportation to the Division laboratory. A card bearing number 56969 was filled out, and the top of the card bearing the same number was taped to the sample. The bottom of the card, also bearing the number 56969 was filled out by the collector of the sample to contain information pertinent to where, when, by whom, and from what horse the sample was taken.

   
   

4. The sample was picked up at the detention barn by Division personnel and transported to the Division laboratory.

   
   

5. The sample was analyzed by personnel at the Division laboratory by means of seven thin layer chromotographies, gas chromotography, and mass spectrometry. These analyses corresponded precisely with analyses by identical tests of a standard derived from Stadol, a drug marketed by Bristol Laboratories whose active ingredient is "butorphanol". Accordingly, it is specifically concluded that the facts of record in this proceeding support the conclusion that the laboratory analyses performed by Division personnel were accurate, and that those analyses establish a positive identification of "butorphanol" to have been contained in the urine specimen taken from Respondent's horse following the ninth race on November 28, 1979.

   
   

6. Butorphanol is marketed as a salt, butorphanol tartrate, under the brand name Stadol, by Bristol Laboratories. Butorphanol is a narcotic with potent analgesic properties approximately equivalent to that of morphine, although its exact mechanism is unknown. Butorphanol acts as a "depressant", in that two milligrams depresses respiration to a degree equal to ten milligrams of morphine, but also has "stimulant" effects on the cardiovascular system. Butorphanol is not recommended for humans physically dependent on narcotics because it has a physical dependence liability, although admittedly low. In horses, butorphanol acts as an analgesic and, depending on dosage, it either depresses or stimulates a horse. The drug would be of use in harness racing for its potent pain killing effects if a horse were sore or lame, or for its depressant effects if a horse were high-strung and likely to break its gait.

   The smallest dosage of Stadol marketed by Bristol Laboratories is a 1 milliliter vial containing 1 milligram of butorphanol. In the smallest administrable injection, butorphanol produces narcotic effects.

   
   

7. Respondent was present on November 15, 1979, at a meeting of all drivers held before the start of the meet during which the offense charged occurred. At that meeting, Division personnel announced to all drivers and trainers in attendance that Stadol was a prohibited substance and was not to be used. Drivers are required to attend meetings such as that held on November 15, 1979, meetings under the harness racing Rules. See, Rule 7E-4.21 (8), Florida Administrative Code. Respondent holds a driver's/trainer's license. In addition, notices were posted around the track advising that the use of Stadol was prohibited. In particular, such a notice was posted in the Racing Secretary's office where every horseman must go to eater a horse in a race.

8. On the day of the race in question Respondent allowed a person identified by him as "Dr. Rites" to examine and treat Hanker Chief for a sore leg which had been causing the horse to limp. During the treatment, "Dr. Rites" gave the horse injections, which the Respondent understood to be Lasix and a "pain killer". "Dr. Ritos" was not, at that time, licensed by the Division as a veterinarian as required by Rule 7E-4.31(7), Florida Administrative Code.

   
   

9. The parties to this proceeding each submitted proposed findings of fact for consideration by the Hearing Officer. To the extent that those proposed findings of fact have not been included in this order, they have been rejected as being either irrelevant to the issues involved in this proceeding, or as not having been supported by evidence of record.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Pari-Mutuel Wagering has jurisdiction over the subject matter of Section 120.57(1), Florida Statutes, and the parties to this action.

    
    

11. Rule 7E-4.25(12)(a), Florida Administrative Code, provides that:

    
    

    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 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. (Emphasis added)

    
    

12. Rule 7E-4.25(13), Florida Administrative Code, provides as follows:

    
    

    The trainer, groom, and any ether person having charge, custody, or care of the horse, are obligated properly to protect the horse and guard it against such administration or attempted administration and if the stewards shall find that any such person has failed to show proper protection and guarding of the horse, they shall impose such

    punishment and take such action as they may deem proper under any of the rules, including reference to the Division. (Emphasis added)

    
    

13. Rule 7E-4.25(3), Florida Administrative Code, the so-called "absolute insurer" rule, 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.

    
    

14. Rule 7E-4.09(3), Florida Administrative Code and Section 550.10(4)(b), Florida Statutes, empower the Division to revoke a license, or to suspend a license for a period not exceeding 60 days for violation of rules of the Division governing the conduct of persons, such as Respondent, connected with the operation of race tracks. The provisions of Rule 7E-4.09(3), Florida Administrative Code, Purporting to authorize the Division to impose monetary funds for violation of its rules has, contemporaneously with the issuance of this order, been declared invalid in Division of Administrative Hearings Case Nos. 80-1128R and 80-1449R, both of which cases involved the parties to this proceeding.

    
    

15. Based upon she foregoing findings of fact and conclusions of law, it is determined that Respondent has violated the provisions of Rules 7E- 4.25(12)(a) once 7E-4.25(13) Florida Administrative Code by allowing the horse, Hanker Chief, to run in the ninth race at Tourist Attractions, Inc., on November 28, 1979, with a "narcotic, stimulant or depressant", in its system, and by failing to properly protect and guard the horse against the administration of such substance.

RECOMMENDED ORDER

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED:

1. That a Final Order be entered by the Division of Pari-Mutuel Wagering, Department of Business Regulation revoking Respondent's License No. L-25378.

DONE AND ENTERED this 20th day of February, 1981 in Tallahassee, Leon County, Florida.

WILLIAM E. WILLIAMS

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 20th day of February, 1981.

COPIES FURNISHED:

David M. Maloney, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301

Larry V. Bishins, Esquire 4548 North Federal Highway

Fort Lauderdale, Florida 33308

Arnold Lasky, Esquire 3510 Biscayne Boulevard

Miami, Florida 33137

================================================================= AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA DEPARTMENT OF BUSINESS REGULATION, DIVISION OF

PARI-MUTUEL WAGERING,

Petitioner,

vs. CASE NO. 80-817

CHARLES R. FEDERMAN,

Respondent.

/

FINAL ORDER

Pursuant to notice, a hearing was held before William E. Williams, Hearing Officer for the Division of Administrative Hearings, on July 24 and 25, 1980, and September 9, 1980, in Miami, Florida.

APPEARANCES

For Petitioner: David M. Maloney, Esquire

Department of Business Regulation

210 Johns Building

725 South Bronough Street Tallahassee, Florida 32301

For Respondent: Larry V. Bishins, Esquire

4548 North Federal Highway Fort Lauderdale, Florida 33308

and

Arnold Lasky, Esquire 3510 Biscayne Boulevard

Miami, Florida 33137 ISSUES

In an administrative complaint entitled "Second Amended Notice to Show Cause" the Division of Pari-Mutuel Wagering ("Division" or "Petitioner") has charged Charles R. Federman ("Respondent") with violation of Rule 7E- 4.25(12)(a), Florida Administrative Code, which provides:

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 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.

The Second Amended Notice to Show Cause alleges that Respondent is in violation of the above-cited rule by virtue of the provisions of Rule 7E-4.05(3)1 Florida Administrative Code, which reads:

The trainer shall be responsible for and be the insuror of the condition of the horses he enters. Trainers are

presumed to know the rules of the Division.

The Second Amended Notice to Show Cause also charges Respondent with an alleged violation of Rule 7E-4.25(13), Florida Administrative Code, which provides:

The trainer, groom, and any other person having charge, custody, or care of the horse, are obligated properly to protect the horse and guard it against such administration or attempted administration and if the stewards shall find that any such person has failed to show proper protection and guarding of the horse,

they shall impose such punishment and take such other action as they may deem proper under any of the rules, including reference to the Division.

The Second Amended Notice to Show Cause alleges that Respondent was the trainer of a horse which, on November 28, 1979 raced in and won the ninth race at Pompano Park where Tourist Attractions, Inc. is licensed by the State of Florida to conduct harness horse racing. It is further alleged that a urine specimen taken from the horse at the conclusion of the race was, upon analysis, found to contain the drug "butorphanol," which is alleged to be a "narcotic" and, in a horse, either a "depressant" or "stimulant." Respondent Federman is charged by the Division with responsibility for the racing of a drugged horse as the insuror of the horse's condition, and further charged with failure to properly protect and guard the horse from administration of the drug.

FINDINGS OF FACT

1. Petitioner is an agency of the State of Florida charged with the duty of regulating, among other things, the harness horse racing industry in the State of Florida.

   
   

2. On November 28, 1979, Charles Federman, holder of pari-mutuel trainer's license L-25378, trained and entered the standardbred horse, Hanker Chief, in the ninth race at Pompano Park in Florida, where Tourist Attractions, Inc., is licensed by the Florida Division of Pari-Mutuel Wagering to conduct horse racing. The horse ran in the race and won. Following the race a urine specimen was taken from the horse by Division personnel.

   
   

3. Following collection, the sample was sealed and was placed in a locked refrigerator in the office of the detention barn where the samples are customarily stored until transportation to the Division laboratory. A card bearing number 56969 was filled out, and the top of the card bearing the same number was taped to the sample. The bottom of the card, also bearing the number 56969 was filled out by the collector of the sample to contain information pertinent to where, when, by whom, and from what horse the sample was taken.

   
   

4. The sample was picked up at the detention barn by Division personnel and transported to the Division laboratory.

5. The sample was analyzed by personnel at the Division laboratory by means of seven thin layer chromotographies, gas chromotography, and mass spectrometry. These analyses corresponded precisely with analyses by identical tests of a standard derived from Stadol, a drug marketed by Bristol Laboratories whose active ingredient is "butorphanol." Accordingly, it is specifically concluded that the facts of record in this proceeding support the conclusion that the laboratory analyses performed by Division personnel were accurate, and that those analyses establish a positive identification of "butorphanol" to have been contained in the urine specimen taken from Respondent's horse following the ninth race on November 28, 1979.

   
   

6. Butorphanol is marketed as a salt, butorphanol tartrate, under the brand name Stadol, by Bristol Laboratories. Butorphanol is a narcotic with potent analgesic properties approximately equivalent to that of morphine, although its exact mechanism is unknown. Butorphanol acts as a "depressant," in that two milligrams depresses respiration to a degree equal to ten milligrams of morphine, but also has "stimulant" effects on the cardiovascular system. Butorphanol is not recommended for humans physically dependent on narcotics because it has a physical dependence liability, although admittedly low. In horses, butorphanol acts as an analgesic and, depending on dosage, it either depresses or stimulates a horse. The drug would be of use in harness racing for its potent pain killing effects if a horse were sore or lame, or for its depressant effects if a horse were high-strung and likely to break its gait.

   The smallest dosage of Stadol marketed by Bristol Laboratories is a 1 milliliter vial containing 1 milligram of butorphanol. In the smallest administerable injection, butorphanol produces narcotic effects.

   
   

7. Respondent was present on November 15, 1979, at a meeting of all drivers held before the start of the meet during which the offense charged occurred. At that meeting, Division personnel announced to all drivers and trainers in attendance that Stadol was a prohibited substance and was not to be used. Drivers are required to attend meetings such as that held on November 15, 1979, meetings under the harness racing rules. See, Rule 7E-4.21(8), Florida Administrative Code. Respondent holds a driver's/trainer's license. In addition, notices were posted around the track advising that the use of Stadol was prohibited. In particular, such a notice was posted in the Racing Secretary's office where every horseman must go to enter a horse in a race.

   
   

8. On the day of the race in question Respondent allowed a person identified by him as "Dr. Ritos" to examine and treat Hanker Chief for a sore leg which had been causing the horse to limp. During the treatment, "Dr. Ritos" gave the horse injections, which the Respondent understood to be Lasix and a "pain killer." "Dr. Ritos" was not, at that time, licensed by the Division as a veterinarian as required by Rule 7A-4.31(7), Florida Administrative Code.

   
   

9. The parties to this proceeding each submitted proposed findings of fact for consideration by the Hearing Officer. To the extent that those proposed findings of fact have not been included in this order, they have been rejected as being either irrelevant to the issues involved in this proceeding, or as not having been supported by evidence of record.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Pari-Mutuel Wagering has jurisdiction over the subject matter of Section 120.57(1), Florida Statutes, and the parties to this action.

11. Rule 7E-4.25 (12)(a), Florida Administrative Code, provides that:

    
    

    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 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. (Emphasis added).

    
    

12. Rule 7E-4.25(13), Florida Administrative Code, provides as follows:

    
    

    The trainer, groom, and any other person having charge, custody, or

    care of the horse, are obligated properly to protect the horse and guard it against such administration or attempted administration and if the stewards shall find that any such person has failed to show proper protection and guarding of the horse, they shall impose such punishment and take such action as they may deem proper under any of the rules, including reference to the Division. (Emphasis added).

    
    

13. Rule 7E04.05(3), Florida Administrative Code, the so-called "absolute insuror" rule, provides that:

    
    

    The trainer shall be responsible

    for and be the insuror of the condition of the horses he enters. Trainers are

    presumed to know the rules of the Division.

    
    

14. Rule 7E-4.09(3), Florida Administrative Code and Section 550.10(4)(b), Florida Statutes, empower the Division to revoke a license, or to suspend a license for a period not exceeding 60 days for violation of rules of the Division governing the conduct of persons, such as Respondent, connected with the operation of race tracks. The provisions of Rule 7E-4.09(3), Florida

    Administrative Code, purporting to authorize the Division to impose monetary funds for violation of its rules has, contemporaneously with the issuance of this order, been declared invalid in Division of Administrative Hearings Case Nos. 80-1128R and 80-1449R, both of which cases involved the parties to this proceeding.

    
    

15. Based upon the foregoing findings of fact and conclusions of law, it is determined that Respondent has violated the provisions of Rules 7E- 4.25(12)(a) and 7E-4.25(13), Florida Administrative Code, by allowing the horse, Hanker Chief, to run in the ninth race at Tourist Attractions, Inc., on November 28, 1979, with a "narcotic, stimulant or depressant," in its system, and by failing to properly protect and guard the horse against the administration of such substance.

FINAL ORDER

Based upon the foregoing findings of fact and conclusions of law, it

is

ORDERED:

1. That Respondent's license, No. L-25378 be and the same is hereby

revoked and Respondent is declared ineligible for licensing for a period of two years from the date of entry of the Emergency Order, December 12, 1979. Such two year period of ineligibility is to run prior to, and not concurrently with, the period of ineligibility imposed in Case No. 80-1147.

DONE AND ORDERED this 6th day of March, 1981, in Tallahassee, Leon County, Florida.

R. B. BURROUGHS, JR. Secretary

Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301

Copies Furnished to:

David M. Maloney, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301

Larry V. Bishins, Esquire 4548 North Federal Highway

Fort Lauderdale, Florida 33308

Arnold Lasky, Esquire 3510 Biscayne Boulevard

Miami, Florida 33137

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

Docket for Case No: 80-000817

Orders for Case No: 80-000817