STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, )

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

)

Petitioner, )

)

vs. ) CASE NO. 83-1847

)

JAMES BRYAN McKATHAN, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause was heard by Linda N. Rigot, the assigned Hearing Officer of the Division of Administrative Hearings, on March 9, 1984 in Miami, Florida.

Petitioner Department of Business Regulation, Division of Pari-mutuel Wagering, was represented by Elliot P. Henslovitz, Esquire, Miami, Florida; and Respondent James Bryan McKathan, was represented by Bruce David Green, Esquire, Ft. Lauderdale, Florida.

Petitioner filed an Administrative Complaint seeking to take disciplinary action against Respondent as licensee and against his pari-mutuel wagering license, and Respondent timely requested a formal hearing on the allegations contained within that Administrative Complaint. Thereafter, Petitioner filed an amended Administrative Complaint, and Respondent filed an Answer thereto.

Accordingly, the issues for determination herein are whether Respondent is guilty of the charges contained in the Amended Administrative Complaint and, if so, what disciplinary action should be taken, if any.

Petitioner presented the testimony of Gary W. Dresser and Anthony Ortero. Additionally, Petitioner's Exhibits numbered 1 and 2 were admitted in evidence.

The Respondent testified on his own behalf and presented the testimony of Diane Schully; Joseph Norman Bagwell; Dan Saunders, Jr., Clayton O'Quinn; Gary

1. Dresser, and Anthony Ortero. Additionally, Respondent's Exhibits numbered 1A-C, 2-4, and 6-8 were admitted in evidence.

   
   

   At the commencement of the final hearing, Petitioner dismissed Count II of the Amended Administrative Complaint filed herein.

   
   

   During the course of the final hearing, ruling was reserved on Respondent's motion to strike testimony regarding events which allegedly occurred on February 15, 1983. Posthearing, Respondent filed a Renewed Motion to Strike.

   Respondent's motions to strike be and the same are hereby granted, and all testimony pertaining to any activities alleged to have occurred on February 15, 1983 be and the same is hereby stricken since it is not relevant to any charge contained in the Amended Administrative Complaint.

   Within Petitioner's Memorandum of Law filed posthearing, Petitioner moves to strike the testimony of witness O'Quinn and to strike from the record photographs taken by him on the ground that no disclosure was made prior to the hearing that O'Quinn would testify and present photograghs taken the day before the hearing depicting the backside of Tampa Bay Downs. By Order entered December 21, 1983, the parties hereto were instructed to file a prehearing stipulation which shall contain, inter alia, a list of all exhibits to be offered at the hearing and a list of names and addresses of all witnesses intended to be called at the hearing. Neither party complied with that Order and cannot now be heard to complain that it is surprised by the testimony of an undisclosed witness. As to the photographs taken by witness O'Quinn the day before the formal hearing, they were admitted only upon the understanding and stipulation of the parties that the photographs represented a general description of the area involved a year after the events in question and were not offered or admitted in evidence as accurate depictions of anything on the dates alleged in the Amended Administrative Complaint. Accordingly, Petitioner's motion to strike the testimony of witness O'0uinn and the photographs taken by him be and the same is hereby denied.

   
   

   Proposed recommended orders containing findings of fact have been submitted by both parties and considered in the preparation of this Recommended Order.

   When the parties' findings of fact were consistent with the weight of the credible evidence introduced at final hearing, then were adopted and are reflected in this Recommended Order. To the extent that the findings were not consistent with the weight of the credible evidence, they have been either rejected, or when possible, modified to conform to the evidence. Additionally, proposed findings which were subordinate, cumulative, immaterial or unnecessary have not been adopted.

   
   

   FINDINGS OF FACT

   
   

   1. On or about November 1, 1982, Respondent applied for and received a pari-mutuel wagering occupational license, number P-5122, as a thoroughbred horse owner. Respondent participated as a horse owner at the 1982-83 race meeting at Tampa Bay Downs, an association licensed by Petitioner. Respondent's trainer was Betty Hilt who was assigned stalls at that race track in barn 21.

      
      

   2. Tampa Bay Downs is a member of the Thoroughbred Racing Association. The Thoroughbred Racing Protective Bureau is a private agency which performs investigative and security services at the Thoroughbred Racing Association's member race tracks.

      
      

   3. In early February, 1983 the Thoroughbred Racing Protective Bureau assigned two of its Task Force agents, Gary W. Dresser and Anthony Ortero, to investigate allegations from an undisclosed source that Respondent was administering, with hypodermic syringes, medications to horses on the grounds of Tampa Bay Downs.

      
      

   4. Dresser began undercover surveillance of the Respondent on or about February 4, 1983. Dresser obtained a pari-mutuel occupational license and a job working in barn 20 at Tampa Bay Downs, a barn across from barn 21 and approximately 60 feet away.

      
      

   5. On February 16, 1983 Dresser and Ortero set up surveillance in an automobile. Only Dresser used binoculars to observe Respondent. Groom Diane Schully exited a stall followed by Respondent. Schully was leading a horse

toward the paddock area, and Respondent was walking in the opposite direction toward his truck. Respondent stopped, turned, and called to Schully; Schully and the horse she was leading stopped; and Respondent then walked toward Schully and the horse. As he walked, Respondent removed an object from his coat pocket. Dresser observed what appeared to him to be the plunger of a syringe, but Ortero was not sure that the object in Respondent's hand was a syringe. As Respondent reached the side of the horse, both Dresser's view and Ortero's view were blocked.

6 At approximately 3:00 p.m. on February 21, 1983 Dresser and Ortero again had Respondent under surveillance. They were both sitting in an automobile, and only Dresser was using binoculars. Both agents observed, Respondent exit one of the stalls in barn 21 with trainer Betty Hilt. Both agents saw Respondent carrying a syringe with the plunger pulled out, indicating it was still full of liquid of some type. However, Dresser who was using binoculars does not know if the syringe had a needle attached to it, and Ortero, who was not using binoculars, only assumes the syringe had a needle attached because he saw the sunlight glint off something and assumes that it was a needle on the end of a syringe. Interestingly enough, Dresser saw the syringe in Respondent's right hand, but Ortero saw the syringe in Respondent's left hand.

1. On neither occasion did either agent confiscate or otherwise obtain a syringe that was observed in Respondent's possession, although agents searched the barn area assigned to trainer Hilt after the observation made on February 21, 1983 and found nothing.

   
   

   CONCLUSIONS OF LAW

   
   

2. The Division of Administrative Hearings has jurisdiction over the subject matter hereof and the parties hereto. Section 120.57(1) Florida Statutes (1983).

   
   

3. Count II of the Amended Administrative Complaint having been dismissed by Petitioner at the commencement of the final hearing, only Count I will be considered herein. That Count charges that on February 16, 1983 and on February 21, 1983 Respondent was in possession of a hypodermic syringe on the backside of Tampa Bay Downs in violation of Section 7E-1.06(15), Florida Administrative Code, which reads as follows:

   
   

   (15) 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 personal property or

   effects, any prohibited drugs, or any hypodermic syringe, hypodermic needle, or other

   device which could be used for the injection or other infusion into a horse of a drug, stimulant 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 reasonable efforts to prevent the violation of this rule.

   
   

   Although that rule prohibits possession of hypodermic syringes and does not prohibit possession of "non-hypodermic syringes," Respondent in what appears to

   have been an abundance of caution propounded interrogatories to the Petitioner seeking specific definitions of the kind of syringe prohibited by Petitioner's rule. Interrogatories numbered 2 and 3, together with the answers thereto, were read into the record at the final hearing in this cause as follows:

   
   

   1. Please define the term "hypodermic syringe."

      
      

      A "syringe" is an instrument for injecting liquids into or withdrawing them from any vessel or cavity. "Hypodermic" means that it is applied or administered beneath the skin.

      
      

   2. Please state whether or not a worming syringe is included within the foregoing definition,

a worming syringe being similar to a hypodermic syringe in all respects except that it

is open-ended and no needle can be affixed.

No. The term "Hypodermic syringe" as used in the complaint means a syringe with a needle affixed.

Neither agent observed a syringe with a needle affixed in the possession of Respondent on February 16, 1983: Ortero was not positive he even saw a syringe, and Dresser only saw what appeared to be the plunger of a syringe. Neither agent Dresser nor Ortero observed a syringe with a needle affixed in the possession of Respondent on February 21, 1983: Dresser does not recall whether he saw a needle affixed to the syringe, and 0rtero believes there was a needle affixed because he saw the sun's reflection glint off a portion of the object Respondent was holding. Further, the two agents disagree as to which hand Respondent was using to carry the syringe. Such is simply not the caliber of evidence required in a disciplinary proceeding at which an occupational license is at stake. Accordingly, Petitioner has failed to meet its burden of proving that Respondent on the dates alleged was in possession of the kind of syringe prohibited by Section 7F-1.06(15), Florida Administrative Code.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions of law, it is recommended that a final order be entered dismissing with prejudice the Amended Administrative Complaint filed against the Respondent herein.

RECOMMENDED and ORDERED this 14th day of January, 1985, in Tallahassee, Florida.

LINDA M. RIGOT

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

FILED with the Clerk of the Division of Administrative Hearings this 14th day of January, 1985.

COPIES FURNISHED:

Elliot Henslovitz, Esquire Division of Pari-Mutuel Wagering 1350 NW 12 Avenue, Room 332

Miami, Fl. 33136

Bruce D. Green, Esquire 2610 Oakland Park Boulevard Ft. Lauderdale, Fl. 33311

Robert Smith Director

Division of Pari-Mutuel Wagering State Office Building

1350 NW 12 Avenue

Miami, Fl. 33136

Docket for Case No: 83-001847

Orders for Case No: 83-001847