STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DIVISION OF PARI-MUTUEL ) WAGERING, DEPARTMENT OF BUSINESS ) REGULATION, STATE OF FLORIDA, )

)

Petitioner, )

)

vs. ) CASE NO. 80-1147

)

CHARLES R. FEDERMAN, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing in the above-styled cause was held before William E. Williams, Hearing Officer for the Division of Administrative Hearings. The hearing was Conducted on September 10, 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. Bishims, Esquire

4548 North Federal Highway Fort Lauderdale, Florida 33308

and

Arnold Lasky, Esquire 3510 Biscayne Boulevard

Miami, Florida 33137 ISSUES

In an Administrative Complaint the Division of Pari-Mutuel Wagering ("Division" or "Petitioner") has accused Charles R. Federman ("Respondent") with violation of Rules 7E-4.25(16) and 7E-4.02(17)(a), Florida Administrative Code.

Rule 7E-4.25(16), Florida Administrative Code, provides that:

No person within the grounds of

a racing association where race horses are lodged or kept, shall have in or upon the premises which he occupies or has the right to occupy, or in his per- sonal property or effects any prohibited drugs, or any hypodermic syringe, hypo- dermic needle or other device which

could be used for the injection or other infusion into a horse, of a drug, stimu- lant or narcotic, without first securing written permission from the Stewards.

Every racing association, upon the grounds of which race horses are lodged or kept, is required to us all reason- able efforts to prevent the violation of this rule.

Rule 7E-4.02(17)(a), Florida Administrative Code, provides that:

No person shall have in Iris possession any narcotic or hallucino- genic drug, marijuana, or any other drug listed under the dangerous drug laws of this state, unless said drug has been prescribed by a physician

or veterinarian.

The Administrative Complaint alleges that, on December 7, 1979, Respondent had in his automobile, which was on the grounds of a race track, certain prohibited drugs, hypodermic syringes and hypodermic needles. It is further alleged that, on the same day, Respondent had in his automobile on the grounds of the race track a partially smoked cigarette containing cannibas or marijuana.

FINDINGS OF FACT

1. Petitioner is an agency of the State of Florida charged with the duty of regulating harness horse racing in the State of Florida.

   
   

2. On December 7, 1979, the Chief of the Division's laboratory, Dr. Wayne Duer, reported four findings of impermissible drugs or medications in four horses that raced at a harness meeting that was then being conducted at Pompano Park. Division documentation indicated that the four horses had been trained by three trainers, one of whom was the Respondent. See Division of Pari-Mutuel Wagering v. Charles R. Federman, DOAH Case No. 80-817. As a matter of standard policy, the Director of the Division authorized a search to be conducted of the barn area and vehicles of the three trainers as soon as possible. The reason for a prompt search was to ensure that no further violations would take place as well as to secure any evidence of the illegal administration of the prohibited substances.

   
   

3. Upon arrival at the track, Division personnel authorized to conduct the search had Respondent Federman paged to his barn. After a search of the barn revealed no evidence of Prohibited substances, Respondent was asked the location of his car so that it could also be searched. Respondent questioned the authority of Division personnel to search his vehicle, whereupon he was shown a copy of the Division's rules purporting to authorize such a search. Respondent then agreed to allow the search of-his car. Respondent unlocked the front of his car, and upon a search of the interior of the car the following items were found: six insulin syringes; a bottle of Didrex pills, which were shown by analysis to be benzphetamine, a central nervous system stimulant; a packet of zigzag cigarette papers; a hand-rolled cigarette, analyzed by the Broward County Sheriffs Department to contain cannibas or marijuana; one 12-cc syringe filled with clear substance with a needle attached to it; another 12-cc syringe; a 3-cc syringe with needle; a glass smoking apparatus; a plastic shaving kit; a 30-cc

   vial containing an unknown substance; and ten 2-cc vials of Narcan, analyzed to be naloxome, a narcotic antagonist which removes the effect of narcotics such as heroin and morphine.

   
   

4. Respondent was than asked to unlock the trunk of his car. Respondent stated that he did not have the key to the trunk of his car, so he was driven by Division personnel to his motel room to obtain the key. Respondent was unable to find the key in his motel room. Division; personnel then informed Respondent of their intention to impound the car, pending a search of the trunk. Upon researching the interior of the car, Respondent then announced that he had found the key and proceeded to unlock the trunk. Inside the trunk were found three 100-milliliter vials marked "Solo-Delta Cortef", five 100-milliliter vials marked "Solu-Delta-Cortef"; two 3-milliliter vials marked "Solu-Delta Cortef"; two 4-milliliter vials marked "Levophed"; four bottles marked "Tevcodyne" containing 100 tablets each; one 250-cc bottle of sterile water; a box containing fifty 12-cc syringes; and a box containing fifty 3-cc syringes.

   
   

5. Respondent did not have written permission from the stewards to possess any of the items taken from his car.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the subject matter of, and the parties to, this action. Section 120.57(1), Florida Statutes.

   
   

7. Rule 7R-4.25(16) , Florida Administrative Code, provides that:

   
   

   No person within the grounds of

   a racing association where race horses are lodged or kept, shall have in or upon the premises which he occupies or has the right to occupy, or in his per- sonal property or effects any prohibited drugs, or any hypodermic syringe, hypo- dermic needle or other device which could be used for the injection or other infusion into a horse, of a drug, stimu- lant or narcotic, without first securing written permission from the Stewards.

   Every racing association, upon the grounds of which race horses are lodged or kept, is required to use all reason- able efforts to prevent the violation of this rule.

8. Rule 7E-4.02(17)(a), Florida Administrative Code, provides that: No person shall have in his

   Possession any narcotic or hallucino-

   genic drug, marijuana, or any other drug listed under the dangerous drug laws of this state, unless said drug has been prescribed by a physician or veterinarian.

9. Rule 7E-4.02(23), Florida Administrative Code, provides that the Division:

   
   

   . . Investigating violations of law or the Rules of the Board, shall have the power to permit persons authorized by either of them to search tie person, or enter and search the stables, rooms,

   vehicles and automobiles or other places within the track enclosure at which a race meeting is held, or other tracks

   or places where the horses eligible to race at said race meeting are kept, of all persons licensed by the [Division] and of all employees and agents of any race track association licensed by said [Division ; and of all vendors who are Permitted by said race track association to sell and distribute their wares and merchandise within the race track enclosure, in order to Inspect and examine the personnel [sic] effects or Property On such persons or kept in such automobiles stables, rooms, vehicles,

   or other places as aforesaid. Each of such licensees, in accepting a license, does thereby consent to such search as aforesaid and waive and release all Claims or possible actions for damages that he may have by virtue of any action taken under this rule. Each employee of a licensed race track association In accepting his employment, arid each vendor who is permitted to sell and dis- tribute his merchandise within the race track enclosure, does thereby consent to such search as aforesaid and waive and release claims or possible actions for damages they may have by virtue of any action taken under this rule.

   
   

10. At the final hearing in this cause the Hearing Officer admitted Petitioner's Exhibits 1 through 18 and Exhibit 20 subject to a motion to strike in order to afford counsel for both parties to brief the issue of the admissibility of those exhibits. After consideration of the issues raised in Respondent's Motion to Strike, the Hearing Officer has determined that said motion should be, and the same is hereby denied. See, Carter v. State, 235 So.2d 681, 683 (Fla. 1st DCA 1970); Hialeah Race Course, Inc. v. Gulfstream Park, 37 So.2d 692, 694 (Fla. 1948); Division of Pari-Mutuel Wagering v. Caple, 362 So.2d 1350 (Fla. 1978).

    
    

11. Respondent violated Rule 7E-4.02(17)(a), Florida Administrative Code, by virtue of his possession of marijuana on December 7, 1979, in his car at Pompano Park where a harness horse race meeting was being conducted.

12. Respondent violated Rule 7E-4.25(16), Florida Administrative Code, by his possession on December 7, 1979, at Pompano Park, where a harness horse race meeting was being conducted, of the following; substances:

    
    

    1. Six hypodermic insulin syringes;

    2. One 12-cc hypodermic syringe and needle;

    3. One 12-cc hypodermic syringe;

    4. One 3-cc hypodermic syringe with needle;

    5. A box containing fifty 12-cc hypodermic syringes;

    6. A box containing fifty 3-cc hypodermic syringes;

    7. Benzphetamine, a central nervous system stimulant.

    8. Naloxone, a narcotic.

RECOMMENDED ORDER

Based upon the foregoing findings of fact and conclusions of law it is RECOMMENDED:

That a final order be entered 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

210 Johns Building

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 PARI-MUTUEL WAGERING

DIVISION OF PARI-MUTUEL WAGERING, DEPARTMENT OF BUSINESS REGULATION, STATE OF FLORIDA,

Petitioner,

vs. CASE NO. 80-1147

CHARLES R. FEDERMAN,

Respondent.

/

FINAL ORDER

Pursuant to notice, a hearing in the above-styled cause was held before William E. Williams, Hearing Officer for the Division of Administrative Hearings. The hearing was conducted on September 10, 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. Bishims, Esquire

4548 North Federal Highway

Fort Lauderdale, Florida 33308 and

Arnold Lasky, Esquire 3510 Biscayne Boulevard

Miami, Florida 33137 ISSUES

In an Administrative Complaint the Division of Pari-Mutuel Wagering ("Division" or "Petitioner") has accused Charles R. Federman ("Respondent") with violation of Rules 7E-4.25(16) and 7E-4.02(17)(a), Florida Administrative Code.

Rule 7E-4.25(16), Florida Administrative Code, provides that:

No person within the grounds of

a racing association where race horses are lodged or kept, shall have in or upon the premises which he occupies or has the right to occupy, or in his per- sonal property or effects any prohibited drugs, or any hypodermic syringe, hypo- dermic needle or other device which could be used for the injection or other infusion into a horse, of a drug, stimu- lant or narcotic, without first securing written permission from the Stewards.

Every racing association, upon the grounds of which race horses are lodged or kept, is required to us all reason- able efforts to prevent the violation of this rule.

Rule 7E-4.02(17)(a), Florida Administrative Code, provides that:

No person shall have in Iris possession any narcotic or hallucino- genic drug, marijuana, or any other drug listed under the dangerous drug laws of this state, unless said drug has been prescribed by a physician

or veterinarian.

The Administrative Complaint alleges that, on December 7, 1979, Respondent had in his automobile, which was on the grounds of a race track, certain prohibited drugs, hypodermic syringes and hypodermic needles. It is further alleged that, on the same day, Respondent had in his automobile on the grounds of the race track a partially smoked cigarette containing cannibas or marijuana.

FINDINGS OF FACT

1. Petitioner is an agency of the State of Florida charged with the duty of regulating harness horse racing in the State of Florida.

   
   

2. On December 7, 1979, the Chief of the Division's laboratory, Dr. Wayne Duer, reported four findings of impermissible drugs or medications in four horses that raced at a harness meeting that was then being conducted at Pompano Park. Division documentation indicated that the four horses had been trained by three trainers, one of whom was the Respondent. See Division of Pari-Mutuel Wagering v. Charles R. Federman, DOAH Case No. 80-817. As a matter of standard policy, the Director of the Division authorized a search to be conducted of the barn area and vehicles of the three trainers as soon as possible. The reason for a prompt search was to ensure that no further violations would take place as well as to secure any evidence of the illegal administration of the prohibited substances.

   
   

3. Upon arrival at the track, Division personnel authorized to conduct the search had Respondent Federman paged to his barn. After a search of the barn revealed no evidence of Prohibited substances, Respondent was asked the location of his car so that it could also be searched. Respondent questioned the

   authority of Division personnel to search his vehicle, whereupon he was shown a copy of the Division's rules purporting to authorize such a search. Respondent then agreed to allow the search of-his car. Respondent unlocked the front of his car, and upon a search of the interior of the car the following items were found: six insulin syringes; a bottle of Didrex pills, which were shown by analysis to be benzphetamine, a central nervous system stimulant; a packet of zigzag cigarette papers; a hand-rolled cigarette, analyzed by the Broward County Sheriffs Department to contain cannibas or marijuana; one 12-cc syringe filled with clear substance with a needle attached to it; another 12-cc syringe; a 3-cc syringe with needle; a glass smoking apparatus; a plastic shaving kit; a 30-cc vial containing an unknown substance; and ten 2-cc vials of Narcan, analyzed to bb naloxone, a narcotic antagonist which removes the offect of narcotics such as heroin and morphine.

   
   

4. Respondent was than asked to unlock the trunk of his car. Respondent stated that he did not have the key to the trunk of his car, so he was driven by Division personnel to his motel room to obtain the key. Respondent was unable to find the key in his motel room. Division; personnel then informed Respondent of their intention to impound the car, pending a search of the trunk. Upon researching the interior of the car, Respondent then announced that he had found the key and proceeded to unlock the trunk. Inside the trunk were found three 100-milliliter vials marked "Solo-Delta Cortef", five 100-milliliter vials marked "Solu-Delta-Cortef"; two 3-milliliter vials marked "Solu-Delta Cortef"; two 4-milliliter vials marked "Levophed"; four bottles marked "Tevcodyne" containing 100 tablets each; one 250-cc bottle of sterile water; a box containing fifty 12-cc syringes; and a box containing fifty 3-cc syringes.

   
   

5. Respondent did not have written permission from the stewards to possess any of the items taken from his car.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the subject matter of, and the parties to, this action. Section 120.57(1), Florida Statutes.

   
   

7. Rule 7R-4.25(16) , Florida Administrative Code, provides that:

   
   

   No person within the grounds of

   a racing association where race horses are lodged or kept, shall have in or upon the premises which he occupies or has the right to occupy, or in his per- sonal property or effects any prohibited drugs, or any hypodermic syringe, hypo- dermic needle or other device which could be used for the injection or other infusion into a horse, of a drug, stimu- lant or narcotic, without first securing written permission from the Stewards.

   Every racing association, upon the grounds of which race horses are lodged or kept, is required to use all reason- able efforts to prevent the violation of this rule.

8. Rule 7E-4.02(17)(a), Florida Administrative Code, provides that:

   
   

   No person shall have in his Possession any narcotic or hallucino- genic drug, marijuana, or any other drug listed under the dangerous drug laws of this state, unless said drug has been prescribed by a physician or veterinarian.

   
   

9. Rule 7E-4.02(23), Florida Administrative Code, provides that the Division:

   
   

   . . Investigating violations of law or the Rules of the Board, shall have the power to permit persons authorized by either of them to search tie person, or enter and search the stables, rooms, vehicles and automobiles or other places within the track enclosure at which a race meeting is held, or other tracks

   or places where the horses eligible to race at said race meeting are kept, of all persons licensed by the [Division] and of all employees and agents of any race track association licensed by said [Division ; and of all vendors who are Permitted by said race track association to sell and distribute their wares and merchandise within the race track enclosure, in order to Inspect and examine the personnel [sic] effects or Property On such persons or kept in such automobiles stables, rooms, vehicles,

   or other places as aforesaid. Each of such licensees, in accepting a license, does thereby consent to such search as aforesaid and waive and release all Claims or possible actions for damages that he may have by virtue of any action taken under this rule. Each employee of a licensed race track association In accepting his employment, arid each vendor who is permitted to sell and dis- tribute his merchandise within the race track enclosure, does thereby consent to such search as aforesaid and waive and release claims or possible actions for damages they may have by virtue of any action taken under this rule.

   
   

10. At the final hearing in this cause the Hearing Officer admitted Petitioner's Exhibits 1 through 18 and Exhibit 20 subject to a motion to strike in order to afford counsel for both parties to brief the issue of the admissibility of those exhibits. After consideration of the issues raised in Respondent's Motion to Strike, the Hearing Officer has determined that said motion should be, and the same is hereby denied. See, Carter v. State, 235

    So.2d 681, 683 (Fla. 1st DCA 1970); Hialeah Race Course, Inc. v. Gulfstream Park, 37 So.2d 692, 694 (Fla. 1948); Division of Pari-Mutuel Wagering v. Caple,

    362 So.2d 1350 (Fla. 1978).

    
    

11. Respondent violated Rule 7E-4.02(17)(a), Florida Administrative Code, by virtue of his possession of marijuana on December 7, 1979, in his car at Pompano Park where a harness horse race meeting was being conducted.

    
    

12. Respondent violated Rule 7E-4.25(16), Florida Administrative Code, by his possession on December 7, 1979, at Pompano Park, where a harness horse race meeting was being conducted, of the following; substances:

    
    

    1. Six hypodermic insulin syringes;

    2. One 12-cc hypodermic syringe and needle;

    3. One 12-cc hypodermic syringe;

    4. One 3-cc hypodermic syringe with needle;

    5. A box containing fifty 12-cc hypodermic syringes;

    6. A box containing fifty 3-cc hypodermic syringes;

    7. Benzphetamine, a central nervous system stimulant.

    8. Naloxone, a narcotic.

ORDER

Based upon the foregoing findings of fact and conclusions of law it is ORDERED:

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. Such two year period of ineligibility is to run consecutively to and not concurrently with the period of ineligibility imposed in Case No. 80-817, thereby rendering Respondent eligible to apply for licensing on December 12, 1983.

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

210 Johns Building

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 Adm. Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

Docket for Case No: 80-001147

Orders for Case No: 80-001147