STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS )

REGULATION, DIVISION OF )

PARI-MUTUEL WAGERING, )

)

Petitioner, )

)

vs. ) CASE NO. 86-3680

)

RICHARD TORTORA, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William J. Kendrick, held a public hearing in the above-styled case on September 25, 1956, in Miami, Florida.

APPEARANCES

For Petitioner: Robert B. Beitler, Esquire

Daniel J. Bosanko, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007

For Respondent: Elizabeth J. DuFresne, Esquire

DuFresne and Bradley, P. A.

2950 Southwest 27th Avenue, Suite 310 Coconut Grove, Florida 33133

PRELIMINARY STATEMENT

By administrative complaint filed with the Division of Administrative Hearings on September 19, 1956, Petitioner, Department of Business Regulation, Division of Pari-Mutuel Wagering (Division), seeks to discipline Respondent, Richard Tortora, the holder of a pari-mutuel wagering occupational license as a thoroughbred trainer. The Department asserts that Tortora was the trainer of a horse which ran with a narcotic, butorphonal, in its system during a thoroughbred meet at Caldar Race Course on August 2, 1956.

At final hearing, the Division called as witnesses: John de Kanel, Scott Swerdlin, Nancy Puchhas, Ethel L. Jones and Marie Dordil. Petitioner offered exhibits, 1-7, 5A-E and 9-14, and they were received into evidence. Respondent testified on his behalf, and called Richard A. Sams and George Maylin as witnesses. Respondent offered exhibits 1-2 and 4-5, and they were received into evidence.

Following the final hearing, the parties were granted leave until October 10, 1986, within which to file proposed findings of fact. The proposed findings filed on behalf of the parties have been addressed in the appendix to this Recommended Order.

FINDINGS OF FACT

1. At all times material hereto, Respondent, Richard Tortora (Tortora), held pari-mutuel wagering occupational license number 0066650, as a thoroughbred trainer. Tortora has been licensed since 1979, and has not previously been the subject of a disciplinary proceeding.

   
   

2. Tortora was a participating trainer during the 1956 thoroughbred meet at Calder Race Course, an association authorized to conduct thoroughbred racing in the State of Florida. On August 2, 1986, Tortora was the trainer of the horse "Chief Again," the winner of the fourth race at Calder Race Course that day.

   
   

3. Immediately following the race, the Division, consistent with its standard practice, took a urine sample from "Chief Again" for analysis by the Division's laboratory. The parties have stipulated that the chain of custody of the urine sample was not breached, and that the urine sample was properly taken, packaged and delivered to the Division's laboratory for testing. The parties have further stipulated that a portion of the urine sample was delivered to Dr. Richard Sams, Equine Testing Laboratory, College of Veterinary Medicine, Ohio State University, Columbus, Ohio, for testing on behalf of Tortora, and that such sample was properly taken, packaged, and delivered.

   
   

4. Upon analysis, the urin sample taken from "chief Again" proved positive for the presence of the drug butorphanol, a schedule 3 narcotic. Butorphanol is a potent analgesic, traditionally used to control the intestinal pain associated with equine colic. In therapeutic dosage, butorphanol renders the animal immobile, however, at low dosages it will act as a stimulant.

   
   

5. In reaching the conclusion that "Chief Again" was shown to have raced with the narcotic butorphanol in his system, the evidence offered on behalf of Tortora, through Drs. Sams and Maylin, has not been overlooked. Such evidence failed, however to detract from the credible and compelling nature of the Division's proof.

   
   

6. The Division's analysis was composed of sequential screening procedures designed to initially identify the presence of an unusual substance and ultimately identify the compound. Throughout the Division's initial procedures, the urine taken from "Chief Again" was consistently identified as containing an opiate with characteristics consistent with those of butorphanol. Ultimately the Division subjected the sample to gas chromatographic/mass spectral analysis. This refined analysis confirmed the presence of butorphonal. The consistency of the Division's findings at all levels of its testing provides compelling evidence that the urine sample taken from "Chief Again" did contain the narcotic butorphonal.

   
   

7. Following the Division's testing, Tortora requested that it furnish the balance of the urine sample taken from "Chief Again", approximately 2om1, to Dr. Richard Sams for analysis. Dr. Sams subjected the sample to gas chromatographic/mass spectral analysis and found no evidence of butorphanol.

8. While finding no evidence of butorphanol, Dr. Sams did not conclude that the sample did not contain the narcotic, but merely that he was unable to detect its presence. According to Dr. Sams, the limited volume of urine available for testing compromised his ability to detect the presence of butorphanol. He affirmatively concluded, however, that the Division's data was properly prepared and adequate to support a positive finding of butorphanol in the sample.

   
   

9. Dr. Maylin's testimony was premised on a review of Dr. Sams' and the Division's written test reports, he undertook no independent analysis, and was not privy to any testimony offered at hearing. Dr. Maylin opined that if butorphanol were present Dr. Sams should have detected it and, based on certain assumptions, that the Division reported a false finding because of laboratory contamination. Dr. Maylin's opinions are rejected. Dr. Sams is familiar with the equipment and procedures he utilized. He of all people is most familiar with the capabilities and reliability of that analysis. Dr. Maylin's opinion that the analysis ran by Dr. Sams had more import than Dr. Sams ascribed to it is not credible. Dr. Maylin's opinion that the Division reported a false finding is likewise not credited. Dr. Maylin's opinion was predicated on the assumption that proper testing procedures were not followed. Dr. Maylin's assumptions were incorrect.

   
   

10. While "Chief Again's" urine was found to test positive for butorphanol, Tortora denies any knowledge of how the narcotic could have been introduced into the horse's system. According to Tortora he was unfamiliar with this narcotic until these charges were brought, and "Chief Again" was not under any medical treatment. Tortora offered no evidence, however, of what provisions he took, if any, to supervise or otherwise protect "Chief Again's" integrity.

    
    

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

    
    

12. Section 550.241, Florida Statutes, provides:

    
    

    1. The racing of an animal with any drug, medication, stimulant, depressant, hypnotic, narcotic, local anesthetic, or drug-masking agent is prohibited. It is a violation of this section for a person to administer or cause to be administered any drug, medication, stimulant, depressant, hypnotic, narcotic, local anesthetic, or drug-masking agent to an animal which will result in a positive test for such substance based on samples taken from the animal immediately prior to or immediately after the racing of that animal.....

       
       

    2. Administrative action may be taken by the division against occupational licensees responsible pursuant to rule of the division for the condition of animals which have been impermissibly medicated or drugged in violation of this section.

       (3)(a) Upon the finding of a violation of this section, the Division of Pari-mutuel Wagering may revoke or suspend the license or permit of the violator or deny a license or permit to the violator, impose a fine against the violator in an amount not to exceed

       $5,000, require the full or partial return of the purse, sweepstakes, and trophy of the race at issue, or impose against the violator any combination of such penalties. The finding of a violation of this section shall in no way prohibit a prosecution for criminal acts committed.

       
       

13. Pertinent to Section 550.241, Florida Statutes, the Department has adopted Rule 7E-1.15(3), F.A.C., and Rule 7E-1.06(11)(a). The "absolute insurer rule," 7E-1.18(3), provides:

    
    

    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. The "medication rule," 7E- 1.06(11)(a), 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 attempted to administer, or to have caused to be administered, or to have caused an attempt to administer, or to have conspired with another person to administer, such narcotic, stimulant, depressant or local anesthetic.

    If the Division laboratory shall find a positive identification of any such medication, such finding shall constitute prima facie evidence that such horse raced with the medication in its system.

    
    

14. The absolute insurer rule, combined with the medication rule, renders the trainer the absolute insurer that horses he races do not have any narcotic in their system. Solirnana v. State, Department of Business Regulation, Division of Pari-Mutuel Wagering, 402 So.2d. 1240 (Fla. 3d DCA 1981).

Based on the foregoing Findings of Fact and Conclusion of Law, it is RECOMMENDED that the Division enter a final order:

1. Suspending the trainer's license of Respondent, Richard Totora, for a period of one (1) year; and

   
   

2. Imposing a fine against Respondent, Richard Tortora, in the sum of

$2,000.00.

DONE and ENTERED this 27th day of October, 1986, at Tallahassee, Florida.

WILLIAM J. KENDRICK

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 27th day of October, 1986.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-3680

The Division's proposed findings of fact are addressed as follows:

1. Addressed in paragraphs 1 and 2.

2. Addressed in paragraph 3.

3-7. Addressed in paragraphs 4-6.

5. Addressed in paragraph 10. 9-11. Addressed in paragraph 7-5.

12-13. Addressed in paragraph 9.

1. Addressed in paragraph 4-9.

   
   

   The Respondent's proposed findings of fact consist of 24 unnumbered paragraphs. For purposes of addressing Respondent's proposals, the paragraphs have been numbered 1-24 and are addressed as follows:

   
   

   1. Addressed in paragraph 1. 2-3. Addressed in paragraph 2.

4. Addressed in paragraphs 3, 5-6. 5-6. Addressed in paragraph 4.

7. Not relevant.

5. Addressed in paragraphs 3, 7-5. 9-22 & 24. Addressed in paragraphs 4-9.

23. Addressed in paragraph 10.

COPIES FURNISHED:

Robert B. Beitler, Esquire Staff Attorney

Department of Business Regulation The Johns Building

725 South Bronough Street Tallahassee, Florida 32301

Elizabeth J. DuFresne, Esquire 2950 Southwest 27 Avenue, #310 Coconut Grove, Florida 33133

James Kearney, Secretary Department of Business Regulation The Johns Building

725 S. Bronough Street Tallahassee, Florida 32301

Robert M. Rosenberg, Director Division of Pari-Mutuel Wagering Department of Business Regulation The Johns Building

725 South Bronough Street Tallahassee, Florida 32301

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

AGENCY FINAL ORDER

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

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

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

)

Petitioner, )

)

vs. ) DPW CASE NO. 86-125

) DOAH CASE NO. 86-3680

RICHARD TORTORA, )

)

Respondent. )

)

FINAL ORDER

Pursuant to Notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William J. Kendrick, held a public hearing in the above styled cause on September 25, 1986, in Miami, Florida.

APPEARANCES

For Petitioner: Robert B. Beitler, Staff Attorney

Daniel J. Bosanko, Deputy General Counsel

Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007

For Respondent: Elizabeth J. DuFresne, Esquire

DuFresne and Bradley, P.A. 2950 SW 27th Avenue, Suite 310 Coconut Grove, Florida 33133

The issue for determination was whether Respondent, Richard Tortora, was the holder of a pari-mutuel wagering occupational license as a thoroughbred trainer, and as such whether he was the trainer of a horse which ran with a narcotic, Butorphanol, in its system during a thoroughbred meet at Calder Race Course on August 2, 1986, and if so, what discipline would be appropriate under the circumstances.

At final hearing the Division called as witnesses: John de Kanel, Scott Swerdlin, Nancy Puchhas, Ethel L. Jones, and Marie Dordil. Petitioner offered Exhibits 1-7, 8A-E and 9-14, and they were received into evidence. Respondent testified on his behalf, and called Richard A. Sams and George Maylin as witnesses. Respondent offered Exhibits 1-2 and 4-5 and they were received into evidence.

The parties submitted post-hearing Proposed Findings of Fact and Conclusions of Law. In a Recommended Order, dated October 27, 1986, the Hearing Officer made certain Findings of Fact and Conclusions of Law and recommended that certain sanctions be imposed.

On November 17, 1986, Respondent submitted Exceptions to the Findings of Fact of the Hearing Officer. However, Section 120.57(1)(b)9, Florida Statutes, prohibits the Division from rejecting or modifying the Findings of Fact of a Hearing Officer unless the Division first determines from a review of the complete record, including a transcript of the proceedings, that the Findings of Fact were not based upon competent substantial evidence. It is not the Division's policy or obligation to secure a transcript of the proceedings when a party disagrees with a Finding of Fact made by a Hearing Officer. Booker Creek Preservation, Inc. v. Department of Environmental Regulation, 415 So.2d 750 (Fla. 1st DCA 1982). Because the Respondent has failed to present the Division with a transcript of the proceedings to enable the Division to determine whether his exceptions are meritorious, the exceptions must be dismissed.

FINDINGS OF FACT

Having reviewed the Recommended Order and being fully apprised in this regard, the Division hereby adopts, and incorporates herein, the Findings of Fact contained in the above referenced Recommended Order, a copy of which is attached hereto as Exhibit A.

CONCLUSIONS OF LAW

Having reviewed the Recommended Order and being fully apprised in this regard, the Division hereby adopts, and incorporates herein, the Conclusions of

Law contained in the above referenced Recommended Order, a copy of which is attached hereto as Exhibit A.

ORDER

Based upon the above referenced Findings of Fact and Conclusions of Law, and in accord with the sanctions recommended by the Hearing Officer for the Division of Administrative Hearings, it is hereby ORDERED that:

1. Respondent, Richard Tortora, is fined the sum of Two thousand dollars ($2,000.00).

   
   

2. Respondent's Florida trainer's license is hereby suspended for a period of one year, commencing January, 1 1987, and ending January J, during which period he may not engage in any activity at any Florida pari-mutuel facility which would otherwise require a Florida pari-mutuel license and shall not be permitted in any restricted area of any Florida pari-mutuel facility which is not normally open to the general public.

DONE AND ORDERED this 9th day of January, 1987, at Miami, Florida.

ROBERT M. ROSENBERG, DIRECTOR

Division of Pari-Mutuel Wagering Department of Business Regulation 1350 N.W. 12th Avenue, Suite 332

Miami, Florida 33136-2169

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by U.S. Mail to William J. Kendrick, Hearing Officer, Division of Administrative Hearings, Oakland Building, 2009 Apalachee Parkway, Tallahassee, Florida 32301, Elizabeth J. DuFresne, Esquire, 2950 Southwest 27th Avenue, Suite 310, Coconut Grove, Florida 33133, and Robert B. Beitler, Staff Attorney, Department of Business Regulation, 725 South Bronough Street, Tallahassee, Florida 32399-1007, this 14th day of January, 1987.

Clerk

Division of Pari-Mutuel Wagering

This Final Order, which constitutes final agency action, may be appealed pursuant to Section 120.68, Florida Statutes, and Rule 9.110, Florida Rules of Appellate Procedure, by filing a Notice of Appeal conforming to the requirements of Rule 9.110(d), Florida Rules of Appellate Procedure, both with the appropriate District Court of Appeal, accompanied by the appropriate filing fees, and with this agency within 30 days of rendition of this Order.

Docket for Case No: 86-003680

Orders for Case No: 86-003680