STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF BUSINESS AND ) PROFESSIONAL REGULATION, DIVISION ) OF PARI-MUTUEL WAGERING, )
)
Petitioner, )
)
vs. ) CASE NO. 93-5993
)
PAUL R. PLANTE, )
)
Respondent, )
)
RECOMMENDED ORDER
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Claude B. Arrington, held a formal hearing in the above-styled case on June 20-23, 1994, in Fort Lauderdale, Florida.
APPEARANCES
For Petitioner: Richard A. Grumberg, Esquire
Senior Attorney
Department of Business and Professional Regulation
1940 North Monroe Street Tallahassee, Florida 32399-1007
For Respondent Karen C. Amlong, Esquire at the hearing: William Amlong, Esquire
Amlong and Amlong
500 Northeast Fourth Street, Second Floor Fort Lauderdale, Florida 33301
For Respondent Dr. Paul R. Plante, pro se on the post- 1450 Southwest Third Street hearing Suite 9
submittal: Pompano Beach, Florida 33069
STATEMENT OF THE ISSUES
Whether Respondent committed the offenses alleged in the Amended Administrative Complaint and the penalties, if any, that should be imposed.
PRELIMINARY STATEMENT
Respondent is a veterinarian who holds a pari-mutuel wagering occupational license issued by Petitioner. By an Amended Administrative Complaint that contained six counts, Petitioner alleged certain facts pertaining to two racehorses and, based on those facts, charged Respondent in Counts One and Four with violating the provisions of Section 550.235(1), Florida Statutes, in Counts
Two and Five with violating the provisions of Section 550.235(2), Florida Statutes, and in Counts Three and Six with violating the provisions of Rule 7E- 1.002(18), Florida Administrative Code (which has been renumbered as Rule 61D- 1.002(18), Florida Administrative Code).
Respondent timely requested a formal administrative hearing, and this proceeding followed. At the formal hearing, the Petitioner presented the testimony of James Gabriel (a City of Fort Lauderdale police officer), William Piroth (a City of Pompano Beach police officer), Dr. Kenneth Hinchcliff (a veterinarian who was accepted as an expert in the fields of exercise physiology and pharmacology), Dr. Stephanie Valberg (a veterinarian who was accepted as an expert in the fields of veterinary medicine and exertional rhabdomyolysis), Dr. Jill Beech (a veterinarian who was accepted as an expert in the fields of veterinary medicine and exertional rhabdomyolysis), Dr. Alistair Webb (a veterinarian and college professor who was accepted as an expert witness in the fields of veterinary medicine and pharmacology), Dr. John Seanor (a veterinarian and attorney who was accepted as an expert in horse racetrack veterinary medicine), Dr. Stanley Axelrod (a veterinarian who was accepted as an expert in the fields of veterinary medicine as it pertains to the harness racing industry and standard bred horses), Patrick T. Russell (a chemist employed by Petitioner who was accepted as an expert in the field of chemistry), James K. Hastings (Liaison Officer for the United States Trotting Association), Royal Logan (Chief of Operations for the Florida Division of Pari-Mutuel Wagering), and John Pozar (Bureau Chief of the Investigative Bureau of the Florida Division of Pari-Mutuel Wagering). Petitioner offered 21 exhibits, two of which were withdrawn and 19 of which were admitted into evidence.
Respondent presented the testimony of Dr. David Kronfeld (a veterinarian who was accepted as an expert in the fields of veterinary medicine, nutrition as applied to horses, and exercise physiology) and of Kenneth Stock (a State of Florida Steward at Pompano Harness Track). Respondent offered 21 exhibits, 18 of which were accepted into evidence.
A transcript of the proceedings has been filed. At the request of the parties, the time for filing post-hearing submissions was set for more than ten days following the filing of the transcript. Consequently, the parties waived the requirement that a recommended order be rendered within thirty days after the transcript is filed. Rule 60Q-2.031, Florida Administrative Code.
Respondent requested and received an extension of time to file his post-hearing submittal after the deadline had passed. Rulings on the parties' proposed findings of fact may be found in the Appendix to this Recommended Order.
FINDINGS OF FACT
Respondent is a veterinarian licensed in the State of Florida. On October 8, 1990, Respondent received pari-mutuel wagering occupational license number 0364610-1046 from the Petitioner. Respondent held this pari-mutuel wagering occupational license at all times pertinent to this proceeding.
Petitioner is the State agency responsible for the regulation of the horse racing industry in the State of Florida.
At all times pertinent to this proceeding, Respondent worked as a racetrack veterinarian at Pompano Harness Track (Pompano Track) in Pompano Beach, Florida.
James Gabriel is a sixteen year veteran of the Fort Lauderdale, Florida, Police Department. During the latter part of 1992, Officer Gabriel began an undercover investigation at Pompano Track as part of his duties with the Metropolitan Organized Crime Intelligence Unit.
Officer Gabriel posed as a convicted felon who was the owner of the horse Yankee Roughneck.
Horse owner Herman Berger registered Yankee Roughneck in his (Berger's) name since as a convicted felon, Officer Gabriel's undercover persona would not be allowed to register as the true owner. Mr. Berger was a target of Officer Gabriel's undercover investigation and did not know that Officer Gabriel was in fact a police officer. Officer Gabriel and Mr. Berger were in contact with one another on almost a daily basis between November 1992 and May 1993.
Mr. Berger owned the horse You've Got The Time.
Officer Gabriel's undercover investigation lasted approximately one year and was electronically monitored so that conversations in which Officer Gabriel was a part were tape recorded without the knowledge of the other participants in the conversation.
At all times pertinent to this proceeding, Yankee Roughneck and You've Got The Time were standard bred horses that raced at Pompano Track.
On the morning of May 24, 1993, Officer Gabriel met with Mr. Berger and discussed having Respondent give Yankee Roughneck a substance to make him run faster. Mr. Berger referred to the substance to be given to Yankee Roughneck as being a "malt". A malt is also known as a "milkshake" and as an "ionic boost".
Later that same day Officer Gabriel came into contact with Respondent when Respondent arrived at Pompano Track at the stable of Charlie Giamanco, the trainer of Yankee Roughneck. Respondent was at the stable to treat Yankee Roughneck for an injury that occurred when the rail of a jog cart broke and a splinter stabbed Yankee Roughneck in the shoulder.
Officer Gabriel was in the presence of Mr. Berger and Mr. Giamanco when Respondent arrived at the stable. Respondent did not know Officer Gabriel, but he knew that Officer Gabriel was a colleague of Mr. Berger.
Officer Gabriel engaged in a conversation with Respondent which was electronically monitored by equipment in good working order.
The following conversation among Respondent (P.P.), Officer Gabriel (J.G.), Mr. Berger (H.B.), and Mr. Giamanco (C.G.) was taped. This conversation pertains to racing Yankee Roughneck and ways to enhance the horse's performance.
P.P.: If the horse the ah, had he been milkshaked before did he race well when he
was milkshaked? Not every horse races well when they get bagged. (Unintelligible.)
H.B.: He came, he raced but not the way he supposed (sic) to.
P.P.: I'll speak with Charlie tomorrow morning. Well the only thing to do is to try it one start.
H.B.: Yes.
P.P.: Not (sic) that expensive to do. (Unintelligible.)
H.B.: Exactly.
P.P.: If the horse improves. H.B.: Alright (sic).
J.G.: How long does it take before we do something like that for (unintelligible).
P.P.: Two and a half hours before the race.
Thereafter, Respondent made the following statement:
P.P.: OK, the same thing that we used to, when
we used to pass the tube, you know, but now, we can't pass the tube. What we're doing is giving it orally. Mix the stuff up put it in their dose syringe. Put it on the back
of their tongue a hundred and eighty c.c. and (unintelligible) even in the states where
they have the black box, it won't test positive, pass the stomach tube and dump that whole big load in him shows on the box.
Subsequently in the conversation, the following dialogue occurred: H.B.: And we going (sic) to do for Yankee
Roughneck (unintelligible).
J.G.: Well, what day do we want to do that?
When we find out when he's, I think he's in Thursday.
P.P.: Okay.
H.B.: We'll find out today.
P.P.: (Unintelligible) check with Charlie and the day he gets in.
H.B.: Yeah.
The milkshake referred to by Respondent and by the other participants in this conversation is a liquid concoction that includes a mixture of sodium bicarbonate. As described by Respondent, the mixture would thereafter be given the horse by dose syringe. This mixture is given to a racehorse in the hopes of enhancing the horse's performance during the race. In the amounts discussed by Respondent, sodium bicarbonate meets the definition of a "medicine" within the meaning of Section 550.235(2), and Section 550.2415(1)(a) and (8), Florida Statutes.
The evidence established that sodium bicarbonate raises the ph level in the horse beyond the normal physiological range and can be expected to delay muscle fatigue in a horse by buffering the buildup of lactic acid in the muscle during periods of exercise. The horse can be expected to run faster because the onset of fatigue will be delayed. An improvement of one to two seconds can be expected in the horse's racing time, which equates to approximately five lengths in a harness race.
Sodium bicarbonate is also administered to racehorses to prevent a condition formally known as exertional rhabdomyolisis and informally referred to as "tying up". The onetime administration of sodium bicarbonate shortly before race time under the facts of this case was to enhance the horse's performance
and not to prevent tying up. If the prevention of tying up had been the goal, small amounts of sodium bicarbonate would had been added to the horse's food over an extended period of time.
The Respondent's reference to the "black box" in the taped conversation is to a device employed by many race tracks to test whether a horse has been "milkshaked" or otherwise improperly medicated. Pompano Track did not use a blackbox.
The Respondent's reference to "tubing" a horse is a prohibited practice whereby a stomach tube is passed through the horse's mouth and into the stomach. The "milkshake" is thereby pumped directly into the horse's stomach. The tubing of a race horses is a practice prohibited by rule adopted by Petitioner. The tubing rule was adopted by Petitioner in an effort to stop the practice of tubing horses by grooms or trainers who have inadequate training and to prevent the practice of milkshaking horses.
Typically, more of the concoction would be administered by tubing than by using the dose syringe. The evidence established that the amount of sodium bicarbonate discussed by Respondent is sufficient to enhance the horse's performance.
Administering the "milkshake" by syringe, as Respondent said he would do, would not violate Petitioner's rule against tubing a horse.
Administering the "milkshake" by syringe, as Respondent said he would do, would constitute the administration of a medication within twenty-four hours of a race in violation of Section 550.2415(8), Florida Statutes.
The Thursday referred to in the conversation is May 27, 1993, the day that Yankee Roughneck was next scheduled to race.
On May 27, 1993, Dr. Michael Carinda, a veterinarian who was in practice with Respondent, brought a "milkshake" to Yankee Roughneck's stable. A groom thereafter administered the milkshake to Yankee Roughneck in the manner described by Respondent. Yankee Roughneck placed third in his race, but he ran slightly slower than he had in his previous race.
The evidence did not establish that Respondent agreed to "milkshake" the horse You've Got The Time within twenty-four hours of a race.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes.
Petitioner has the burden of proving by clear and convincing evidence the allegations against Respondent. See Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987); Evans Packing Co. v. Department of Agriculture and Consumer Services, 550 So.2d 112 (Fla. 1st DCA 1989). Evans Packing, supra, 550 So. 2d 112, 116, fn. 5, provides the following pertinent to the clear and convincing evidence standard:
That standard has been described as follows: [C]lear and convincing evidence requires that the evidence must be found to be credible; the
facts to which the witnesses testify must be distinctly remembered; the evidence must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact the
firm belief of (sic) conviction, without hesitancy, as to the truth of the allegations sought to be established. Slomowitz v. Walker, 429 So.2d 797, 800 (Fla. 4th DCA 1983).
There was insufficient evidence to establish the alleged violations pertaining to the horse You've Got the Time contained in Counts Four, Five, and Six.
Count One alleged that Respondent violated the provisions of Section 550.235(1), Florida Statutes, which provide, in pertinent part, as follows:
Any person who ... has any connivance with any owner ... or other person associated with or interested in any stable ... [or] horserace, in which any horse ... participates to prearrange or predetermine the results of any such race or game is guilty of a felony of the third degree, punishable as provided in s. 775.082, s.775.083, or s. 775.084.
Counts Two alleged that Respondent violated the provisions of Section 550.235(2), Florida Statutes, which provide, in pertinent part, as follows:
(2) Any person who attempts to affect the outcome of a horserace ... through the administration of medication or drugs to a race animal as prohibited by law; who administers any medication or drugs prohibited by law to a race animal for the purpose of affecting the outcome of a horserace ...; or who conspires to administer or to attempt to administer such medication or drugs is guilty of
a felony of the third degree, punishable as provided in s. 775.082, s.775.083, or s. 775.084.
Count Three alleged that Respondent violated the provisions of Rule 7E-16.002(18), Florida Administrative Code, which has been renumbered as Rule 61D-1.002(18), Florida Administrative Code, and which provide, in pertinent part, as follows:
(18) No person shall conspire with any other person for the commission of, or connive with any other person in any corrupt or fraudulent practice in relation to racing or jai alai nor shall he commit such an act on his own account.
Section 550.2415(1)(a) and (8), Florida Statutes, provides, in pertinent part, as follows:
(1)(a) The racing of an animal with any drug, medication, stimulant, depressant, hypnotic, local anesthetic, or drug-masking agent is prohibited. ...
* * *
(8) Under no circumstances may any medication be administered closer than 24 hours prior to the officially scheduled post time of a race except as provided for in this section. ...
Petitioner established by clear and convincing evidence that Respondent violated the provisions of Section 550.235(2), Florida Statutes, as alleged in Count Two of the Amended Administrative Complaint. This violation was established by the evidence that Respondent conspired with Herman Berger on May 24, 1993, to attempt to enhance the performance of the horse Yankee Roughneck by administering medication in the form of a "milkshake" to the horse approximately 2.5 hours prior to a race scheduled for May 27, 1994. By attempting to enhance the performance of the horse, Respondent attempted to affect the outcome of the race.
Petitioner failed to establish that Respondent violated the provisions of Section 550.235(1), Florida Statutes, as alleged in Count One. While Respondent clearly engaged in a conspiracy with Herman Berger and others in an attempt to affect the outcome of the race, he did not try to "prearrange or predetermine" the results of the race within the meaning of Section 550.235(1), Florida Statutes.
Respondent is also guilty of violating the provisions of Rule 6D- 1.002(18), Florida Administrative Code, as alleged in Count Three of the Amended Administrative Complaint. Petitioner established by clear and convincing evidence that Respondent conspired with Herman Berger and others to enhance the performance of Yankee Roughneck, which constitutes fraud in relation to racing.
Petitioner has the authority to suspend, revoke, or declare ineligible the Respondent's occupational license in addition to assessing an administrative fine in the amount of $1,000 for each violation established. See, Section 550.105, Florida Statutes.
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order that adopts the findings of
fact and conclusions of law contained herein. IT IS FURTHER RECOMMENDED that Petitioner's Final Order find Respondent not guilty of the offenses alleged in Counts One, Four, Five, and Six of the Amended Administrative Complaint. IT IS FURTHER RECOMMENDED that Petitioner's Final Order find Respondent guilty of the offenses alleged in Counts Two and Three, suspend Respondent's occupational license for a period of one year, and assess against Respondent an administrative fine in the amount of $2,000.
DONE AND ENTERED this 12th day of December, 1994, in Tallahassee, Leon County, Florida.
CLAUDE B. ARRINGTON
Hearing Officer
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 12th day of December 1994.
APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-5993
The following rulings are made on the proposed findings of fact submitted by the Petitioner.
The proposed findings of fact in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 13, 20, 21, 26, and 30 are adopted in material part by the Recommended Order.
The proposed findings of fact in paragraph 11 are adopted in part by the Recommended Order and are rejected in part as being unnecessary to the conclusions reached.
The proposed findings of fact in paragraphs 14, 15, 16, 17, 18, 19, 22, 23, 24, 25, 27, 28, 29, 31, 32, 33, 34, 35, 37, 38, 39, 41, 42, 43, 44, 45, and
46 are rejected as being subordinate to the findings made.
The proposed findings of fact in paragraph 36 are rejected as being unnecessary to the conclusions reached.
The proposed findings of fact in paragraph 40 are adopted in part by the Recommended Order, but are rejected in part as being argument that is subordinate to the findings made.
The following rulings are made on the proposed findings of fact submitted by the Respondent.
The proposed findings of fact in paragraphs 1, 2, 3, 4, 11, and 15 are adopted in material part by the Recommended Order.
The proposed findings of fact in paragraphs 5 and 8 are rejected as being unnecessary to the conclusions reached. The composition of the concoction referred to as a "milkshake" was described in the Amended Administrative Complaint and was established at the formal hearing.
The proposed findings of fact in paragraph 6 are rejected as being contrary to the findings made.
The proposed findings of fact in paragraph 7 are subordinate to the findings made.
The proposed findings of fact in paragraphs 8, 12, and 13 are rejected as being argument.
The proposed findings of fact in paragraphs 9 and 10 are rejected as being unnecessary to the conclusions reached or as being contrary to the findings made.
The proposed findings of fact in paragraphs 14 and 16 are rejected as being argument that is contrary to the conclusions reached or to the findings made.
COPIES FURNISHED:
Richard A. Grumberg, Esquire Department of Business and
Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32308
Karen C. Amlong, Esquire William Amlong, Esquire Amlong and Amlong
500 Northeast 4th Street, 2nd Floor Fort Lauderdale, Florida 33301
Dr. Paul R. Plante
1450 Southwest Third Street Pompano Beach, Florida 33069
William E. Tabor, Director Division of Pari-Mutuel Wagering 1940 North Monroe Street Tallahassee, Florida 32399-0792
Jack McRay, Acting General Counsel Department of Business and
Professional Regulation 1940 North Monroe Street
Tallahassee, Florida 32399-0792
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions to this recommended order. All agencies allow each party at least ten days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this recommended order. Any exceptions to this recommended order should be filed with the agency that will issue the final order in this case.
================================================================= AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA
DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION DIVISION OF PARI-MUTUEL WAGERING
DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION
DIVISION OF PARI-MUTUEL WAGERING,
Petitioner,
-vs- DOAH CASE NO: 93-05993
DBPR CASE NO: 93-70511
PAUL R. PLANTE, V.M.D.,
Respondent.
/
FINAL ORDER
THIS MATTER came before the Division of Pari-Mutuel Wagering (hereinafter referred to as the "Division") pursuant to Section 120.57(1)(b)10, Florida Statutes, for consideration of the Recommended Order filed in this cause (a copy of which is attached and incorporated herein by reference).
The Division has jurisdiction of this cause, pursuant to the provisions of Section 120.57(1) and Chapter 551, Florida Statutes.
Several matters, including Respondent's Request for Extension of Time to File Exceptions, Respondent's Exceptions, Petitioner's Motion to Increase Penalty, Respondent's Motion to Deny Petitioner's Motion to Increase Penalty, and Respondent's Motion to Reject the Recommended Order and Dismiss Charges, are incorporated by reference herein, and resolved as follows:
Respondent's Request for Extension of Time to File Exceptions is GRANTED.
On March 1, 1995, Respondent filed its "Motion to Reject the Recommended Order and Dismiss Charges." The grounds stated as support for the motion were in reality exceptions to the Hearing Officer's Findings of Fact. Respondent had, as noted below, previously filed numerous exceptions to the Recommended Order. Therefore, the exceptions to findings of fact contained in this motion are untimely filed, and are rejected. The other grounds for dismissal set forth in the motion relate to the withdrawal of Respondent's counsel and the consequences of that withdrawal. This agency does not have jurisdiction over the conduct of attorneys, and cannot grant relief based on such conduct. The "Motion to Reject the Recommended Order and Dismiss Charges" sets forth no grounds for dismissal cognizable by this agency, and is DENIED.
Respondent has filed exceptions to findings of fact Numbered I-XXIII at paragraphs 1-164 and at paragraph 212, and exceptions to conclusions of law (Numbered 165-216) contained in the Hearing Officer's Recommended Order. Petitioner did not file a response to Respondent's Exceptions. Determinations on the exceptions are as follows:
Respondent's Exceptions to the Hearing Officer's Findings of Fact numbered I through XXIII and paragraph 212 are DENIED. The exceptions merely reiterate the positions Respondent asserted before the Hearing Officer. Competent substantial evidence in the record supports the Findings of Fact. It is not within the province of the agency head to reweigh the evidence, nor to reject the Hearing Officer's determinations as to the credibility of witnesses.
Respondent's Exceptions numbered as paragraphs 165 through 205, 207, 211, and 213 through 215 are exceptions to the Hearing Officer's Conclusions of Law, and are REJECTED.
Respondent's Exceptions numbered as paragraphs 206, 208 through 210, and 216 are statements which are exceptions to neither findings of fact nor conclusions of law. Those paragraphs are Respondent's statements regarding case chronology or appellate rights, and are not addressed herein.
There is competent substantial evidence in the record to support the Findings of Fact and Conclusions of Law contained in the Recommended Order; said Findings of Fact and Conclusions of Law are adopted and incorporated herein in their entirety.
Petitioner's Motion to Increase Penalty requests that the Hearing Officer's recommended suspension of one year be increased to a suspension of five years. Petitioner's Motion cites as aggravating factors the severity of the misconduct, the threat to the integrity of the racing industry, the danger to the public welfare, and disregard for the law. The record demonstrates the presence of these factors, especially the threat to the integrity of the racing industry and to the integrity of pari-mutuel wagering, and Respondent's disregard for the statutes violated here. Petitioner's Exhibit No. 7, a tape recording of the conversation among Respondent, Herman Berger, and undercover officer James Gabriel, clearly demonstrates that Respondent knew that the "milkshake" he proposed to administer was illegal, and that Respondent believed the method he proposed to use would circumvent the "tubing" rule, and was likely to escape detection. That the conspiracy apparently failed to produce the desired outcome, winning the race, in no way mitigates the harm to the integrity of the betting process.
Respondent correctly asserts that neither the Emergency Suspension Order issued at the inception of this action, and later withdrawn by Petitioner, nor Respondent's license to practice veterinary medicine issued by the Board of Veterinary Medicine, Department of Business and Professional Regulation, should be considered in a determination of the appropriate penalty in this matter. Neither is considered herein.
The record proves violations of Section 550.235(2), Fla. Stat. Fla. Admin. Code R. 61D-1.002(18), involving a single incident and a single animal; no other violation is proved. However, in an industry where the public depends absolutely on the Division to safeguard the integrity of the wagering process and the fairness of the contests, even a single incident which may alter the
outcome of an event cannot be tolerated. The betting public must be assured that the integrity of pari-mutuel wagering in Florida is being vigorously safeguarded.
The division may adopt the Hearing Officer's findings of fact and conclusions of law, and remain free to set an appropriate penalty which falls within the guidelines set by its governing statute. Criminal Justice Standards and Training Commission v. Bradley, 596 So.2d 661, (Fla. 1992). The penalties set by statute for the violations found in this matter include a fine of $ 1,000 per violation and suspension or revocation of the license, and the Division may exclude persons from pari-mutuel facilities. Section 550.0251(6) and (10), Fla. Stat.. In light of the aggravating factors cited by the Petitioner, the facts of this case warrant a more severe penalty than that recommended by the Hearing Officer.
THEREFORE, IT IS HEREBY ORDERED AND ADJUDGED:
Respondent's Pari-Mutuel Wagering Occupational License (Veterinarian) Numbered 0364610-1046 is hereby SUSPENDED for a period of two years. During the period of suspension, Respondent is hereby excluded from all licensed pari- mutuel facilities in this State. Respondent is also hereby ordered to pay an administrative fine of $ 2,000.00 to the Division not later than thirty days from the date of filing of this Order.
DONE AND ORDERED this 2nd day of March, 1995.
WELLINGTON H. MEFFERT II
Acting Director
Division of Pari-Mutuel Wagering
Pursuant to Section 120.59, Florida Statutes, the Parties are hereby notified that they may appeal this Final Order by filing one copy of a Notice of Appeal with the Clerk of the Department of Business and Professional Regulation, Northwood Centre, 1940 North Monroe Street, Tallahassee, Florida 32399-0792, and by filing the filing fee and one copy of the Notice of Appeal with the District Court of Appeal within thirty (30) days of the effective date of this Order.
This Order shall become effective upon filing with the Clerk of the Division of Pari-Mutuel Wagering of the Department of Business and Professional Regulation.
COPIES FURNISHED:
Richard T. Farrell, Secretary Lisa S. Nelson Department of Business and Deputy General Counsel
Professional Regulation Department of Business and 1940 North Monroe Street Professional Regulation Tallahassee, Florida 1940 North Monroe Street
32399-0750 Tallahassee, Florida 32399-0750
Royal H. Logan, Director Richard A. Grumberg Division of Pari-Mutuel Wagering Senior Attorney
Department of Business and Department of Business and Professional Regulation Professional Regulation
1940 North Monroe Street 1940 North Monroe Street Tallahassee, Florida 32399-1007 Tallahassee, Florida 32399-1007
Paul R. Plante, V.M.D.
1450 S.W. 3rd Street, No. 9 Pompano Beach, Florida 33069
=================================================================
AMENDED AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA
DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION DIVISION OF PARI-MUTUEL WAGERING
DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION
DIVISION OF PARI-MUTUEL WAGERING,
Petitioner,
vs. DOAH CASE NO: 93-05993
DBPR CASE NO: 93-70511
PAUL R. PLANTE, V.M.D.,
Respondent.
/
AMENDED FINAL ORDER
THIS MATTER came before the Division of Pari-Mutuel Wagering (hereinafter referred to as the "Division" pursuant to Section 120.57(1)(b)l0, Florida Statutes, for consideration of the Recommended Order filed in this cause (a copy of which is attached and incorporated herein by reference).
This Amended Final Order is filed to correct a technical flaw in the filing of the Final Order filed in this matter on March 2, 1995, which was filed without a copy of the Recommended Order attached.
The Division has jurisdiction of this cause, pursuant to the provisions of Section 120.57(1) and Chapter 551, Florida Statutes.
Several matters, including Respondent's Request for Extension of Time to File Exceptions, Respondent's Exceptions, Petitioner's Motion to Increase Penalty, Respondent's Notion to Deny Petitioner's Motion to Increase Penalty, and Respondent's Motion to Reject the Recommended Order and Dismiss Charges, are incorporated by reference herein, and resolved as follows:
Respondent's Request for Extension of Time to File Exceptions is GRANTED.
On March 1, 1995, Respondent filed its "Motion to Reject the Recommended Order and Dismiss Charges." The grounds stated as support for the motion were in reality exceptions to the Hearing Officer's Findings of Fact. Respondent had, as noted below, previously filed numerous exceptions to the Recommended Order. Therefore, the exceptions to findings of fact contained in this motion are untimely filed, and are rejected. The other grounds for dismissal set forth in the motion relate to the withdrawal of Respondent's counsel and the consequences of that withdrawal. This agency does not have jurisdiction over the conduct of attorneys, and cannot grant relief based on such conduct. The "Motion to Reject the Recommended Order and Dismiss Charges" sets forth no grounds for dismissal cognizable by this agency, and is DENIED.
Respondent has filed exceptions to findings of fact Numbered I-XXIII at paragraphs 1-164 and at paragraph 212, and exceptions to conclusions of law (Numbered 165-216) contained in the Hearing Officer's Recommended Order. Petitioner did not file a response to Respondent's Exceptions. Determinations on the exceptions are as follows:
Respondent's Exceptions to the Hearing Officer's Findings of Fact numbered I through XXIII and paragraph 212 are DENIED. The exceptions merely reiterate the positions Respondent asserted before the Hearing Officer. Competent substantial evidence in the record supports the Findings of Fact. It is not within the province of the agency head to reweigh the evidence, nor to reject the Hearing Officer's determinations as to the credibility of witnesses.
Respondent's Exceptions numbered as paragraphs 165 through 205, 207, 211, and 213 through 215 are exceptions to the Hearing Officer's Conclusions of Law, and are REJECTED.
Respondent's Exceptions numbered as paragraphs 206, 208 through 210, and 216 are statements which are exceptions to neither findings of fact nor conclusions of law. Those paragraphs are Respondent's statements regarding case chronology or appellate rights, and are not addressed herein.
There is competent substantial evidence in the record to support the Findings of Fact and Conclusions of Law contained in the Recommended Order; said Findings of Fact and Conclusions of Law are adopted and incorporated herein in their entirety.
Petitioner's Motion to Increase Penalty requests that the Hearing Officer's recommended suspension of one year be increased to a suspension of five years. Petitioner's Motion cites as aggravating factors the severity of the misconduct, the threat to the integrity of the racing industry, the danger to the public welfare, and disregard for the law. The record demonstrates the presence of these factors, especially the threat to the integrity of the racing industry and to the integrity of pari-mutuel wagering, and Respondent's disregard for the statutes violated here. Petitioner's Exhibit No. 7, a tape recording of the conversation among Respondent, Herman Berger, and undercover officer James Gabriel, clearly demonstrates that Respondent knew that the "milkshake" he proposed to administer was illegal, and that Respondent believed the method he proposed to use would circumvent the "tubing" rule, and was likely
to escape detection. That the conspiracy apparently failed to produce the desired outcome, winning the race, in no way mitigates the harm to the integrity of the betting process.
Respondent correctly asserts that neither the Emergency Suspension Order issued at the inception of this action, and later withdrawn by Petitioner, nor Respondent's license to practice veterinary medicine issued by the Board of Veterinary Medicine, Department of Business and Professional Regulation, should be considered in a determination of the appropriate penalty in this matter. Neither is considered herein.
The record proves violations of 550.235(2), Fla. Stat. Fla. Adinin. Code R. 6lD-1.002(18), involving a single incident and a single animal; no other violation is proved. However, in an industry where the public depends absolutely on the Division to safeguard the integrity of the wagering process and the fairness of the contests, even a single incident which may alter the outcome of an event cannot be tolerated. The betting public must be assured that the integrity of pari-mutuel wagering in Florida is being vigorously safeguarded.
The division may adopt the Hearing Officer's findings of fact and conclusions of law, and remain free to set an appropriate penalty which falls within the guidelines set by its governing statute. Criminal Justice Standards and Training Commission v. Bradley, 596 So.2d 661, (Fla. 1992). The penalties set by statute for the violations found in this matter include a fine of $ 1,000 per violation and suspension or revocation of the license, and the Division may exclude persons from pari-mutuel facilities. s 550.0251(6) and (10), Fla. Stat.. In light of the aggravating factors cited by the Petitioner, the facts of this case warrant a more severe penalty than that recommended by the Hearing Officer.
THEREFORE, IT IS HEREBY ORDERED AND ADJUDGED:
Respondent's Pari-Mutuel Wagering Occupational License (Veterinarian) Numbered 0364610-1046 is hereby SUSPENDED for a period of two years. During the period of suspension, Respondent is hereby excluded from all licensed pari- mutuel facilities in this State. Respondent is also hereby ordered to pay an administrative fine of $ 2,000.00 to the Division not later than thirty days from the date of filing of this Order.
DONE AND ORDERED this 15th day of March, 1995.
WELLINGTON H. MEFFERT II
Acting Director
Division of Pari-Mutuel Wagering
Pursuant to section 120.59, Florida Statutes, the Parties are hereby notified that they may appeal this Final Order by filing one copy of a Notice of Appeal with the Clerk of the Department of Business and professional Regulation, Northwood Centre, 1940 North Monroe Street, Tallahassee, Florida 32399-0792, and by filing the filing fee and one copy of the Notice of Appeal with the District Court of Appeal within thirty (30) days of the effective date of this Order.
This Order shall become effective upon filing with the Clerk of the Division of Pari-Mutuel Wagering of the Department of Business and professional Regulation.
COPIES FURNISHED:
Richard T. Farrell, Secretary Lisa S. Nelson Department of Business and Deputy General Counsel
Professional Regulation Department of Business and 1940 North Monroe Street Professional Regulation Tallahassee, Florida 32399-0750 1940 North Monroe Street
Tallahassee, Florida 32399-0750
Royal H. Logan, Director Richard A. Grumberg Division of Pari-Mutuel Wagering Senior Attorney
Department of Business and Department of Business and Professional Regulation Professional Regulation
1940 North Monroe Street 1940 North Monroe Street Tallahassee, Florida 32399-1007 Tallahassee, Florida 32399-1007
Paul R. Plante, V.M.D.
1450 S.W. 3rd Street, No. 9 Pompano Beach, Florida 33069
| Issue Date | Proceedings |
|---|---|
| Jun. 06, 1996 | Final Order; Amended Final Order filed. |
| Dec. 12, 1994 | Recommended Order sent out. CASE CLOSED. Hearing held June 20-23, 1994. |
| Nov. 14, 1994 | Respondent`s Proposed Recommended Order; Cover Letter filed. |
| Nov. 12, 1994 | Respondent`s Proposed Recommended Order; Cover Letter filed. |
| Nov. 12, 1994 | Respondent`s Proposed Recommended Order; Cover Letter filed. |
| Oct. 28, 1994 | Order sent out. (re: Respondent`s Motion to withdraw and for further enlargement of time) |
| Oct. 24, 1994 | Petitioner`s Proposed Recommended Order filed. |
| Oct. 24, 1994 | Motion to withdraw and for further enlargement of time (Respondents`)filed. |
| Oct. 21, 1994 | Petitioner`s Proposed Recommended Order filed. |
| Sep. 22, 1994 | Order sent out. (parties shall have until 10/21/94 to file their post-hearing submittals) |
| Sep. 20, 1994 | Respondent`s Motion for Extension of Time filed. |
| Aug. 31, 1994 | Order sent out. (Motion granted) |
| Aug. 24, 1994 | Respondent`s Motion for Extension of Time filed. |
| Aug. 19, 1994 | Transcripts (Volumes I, II, III, IV, V, VI, VII/tagged) filed. |
| Jul. 20, 1994 | (Respondent) Notice of Absence filed. |
| Jul. 20, 1994 | (Respondent) Notice of Absence filed. |
| Jul. 01, 1994 | Notice of Filing Late-Filed Exhibit filed. |
| Jul. 01, 1994 | (Telephonic) Deposition of Brian D. Ban filed. |
| Jun. 23, 1994 | (Respondent) Request To Take Official Recognition; Notice of Intent To Use Summary filed. |
| Jun. 22, 1994 | (Respondent) Notice of Telephone Deposition (3); Notice of Intent To Use Summary filed. |
| Jun. 20, 1994 | CASE STATUS: Hearing Held. |
| Jun. 20, 1994 | (Respondent) Motion to Recess Administrative Hearing; Respondent`s Response to Petitioner`s Motion in Limine filed. |
| Jun. 20, 1994 | Subpoena Ad Testificandum (Duces Tecum) filed. (From Karen Coolman Amlong) |
| Jun. 20, 1994 | (Respondent) Notice of Telephone Deposition (4); Re-Notice of Deposition filed. |
| Jun. 17, 1994 | (Petitioner) Notice of Appearance filed. |
| Jun. 16, 1994 | Respondent`s Response to Petitioner`s Motion in Limine & cover ltr filed. |
| Jun. 16, 1994 | (Respondent) Notice of Deposition (3); Subpoena Ad Testificandum filed. |
| Jun. 16, 1994 | Petitioner`s Emergency Motion in Limine filed. |
| Apr. 15, 1994 | Order Denying Motion to Relinquish Jurisdiction, to Dismiss Amended Administrative Complaint, or to Abate Proceedings sent out. |
| Apr. 13, 1994 | (Petitioner) Notice of Filing; DBPR`s 1992 and 1993 Cumulative Subject Matter Index and List of Agency Orders filed. |
| Mar. 15, 1994 | Notice of Hearing sent out. (hearing set for 6/20-24/94; 9:00am; Ft. Lauderdale) |
| Mar. 14, 1994 | Motion to Relinquish Jurisdiction for Consideration of Motion to Dismiss Amended Administrative Complaint or to Stay or Abate Proceedings for Violation of Section 120.53(2), Florida Statutes With Regard to Publication and Indexing of Orders filed. |
| Mar. 08, 1994 | Petitioner`s Response to Respondent`s Motion to Relinquish Jurisdiction filed. |
| Feb. 28, 1994 | Respondent`s Unilateral Status Report filed. |
| Feb. 28, 1994 | (Petitioner) Status Report and Motion for Hearing Date filed. |
| Jan. 31, 1994 | Order Granting Motion to Abate and Denying All Pending Motions Without Prejudice sent out. (Parties to file status report by 2/28/94) |
| Jan. 27, 1994 | (Respondent) Motion to Continue Formal Hearing and to Abate Proceedings filed. |
| Jan. 26, 1994 | (Respondent) Motion to Relinquish Jurisdiction for Consideration of Motion to Dismiss Amended Administrative Complaint or to Stay or Abate Proceedings for Violation of Section 120.53(2), Florida Statutes With Regard to Publication and Indexing of Orders |
| Jan. 25, 1994 | (Respondent) Notice of Filing w/Affidavit filed. |
| Jan. 18, 1994 | Respondent`s Third Request for Production; Notice of Service of Respondent`s Second Interrogatories; Respondent`s Second Interrogatories to Petitioner; Request for Admissions filed. |
| Jan. 18, 1994 | (Respondent) Notice of Service of Answers to Interrogatories w/attached Answers filed. |
| Jan. 14, 1994 | (Respondent) Response to Request Petitioner`s First Request for Production; Response to Petitioner`s Request for Admissions filed. |
| Jan. 13, 1994 | (Respondent) Motion for Enlargement of Time filed. |
| Jan. 12, 1994 | Respondent`s Motion to Compel Discovery and for Other Relief filed. |
| Dec. 28, 1993 | (Respondent) Answer and Affirmative Defenses to Amended Administrative Complaint filed. |
| Dec. 13, 1993 | Respondent`s Second Request for Production; Notice of Service of Interrogatories w/Respondent`s First Interrogatories to Petitioner filed. |
| Dec. 08, 1993 | Notice of Serving Petitioner`s First Set of Request for Admissions, Request for Production of Documents and Interrogatories to Respondent filed. |
| Nov. 30, 1993 | (Petitioner) Amended Administrative Complaint filed. |
| Nov. 23, 1993 | Petitioner`s Response to Respondent`s First Request for Production filed. |
| Nov. 10, 1993 | Notice of Hearing sent out. (hearing set for 2/15-17/94; 9:00am; Ft. Lauderdale) |
| Nov. 08, 1993 | Joint Response to Order Canceling Hearing filed. |
| Oct. 28, 1993 | (Respondent) Answer and Affirmative Defenses to Administrative Complaint and Emergency Order of Supension; Respondent's First Request to Produce; Motion to Shorten Time to Respondent to Respndent's First Request to Produce w/(8) Notice of Deposition w/cov |
| Oct. 27, 1993 | Order on Several Matters sent out. (Re: Petitioner`s Motion to Amend Denied; Respondent`s First Request to Produce Granted in part & Denied in part; Respondent`s First Request to Produce Granted; etc.) |
| Oct. 27, 1993 | Order Canceling Hearing sent out. (hearing date to be rescheduled at a later date; parties to file status report within 10 days) |
| Oct. 27, 1993 | Order Rescinding Emergency Order of Suspension filed. (From William E. Tabor) |
| Oct. 26, 1993 | (Petitioner) Amended Administrative Complaint and Emergency Order of Suspension filed. |
| Oct. 26, 1993 | (Petitioner) Motion for A Protective Order w/Exhibits A&B filed. |
| Oct. 25, 1993 | (Fax) Letter to SLS from Karen Coolman Amlong (re: post suspension hearing) filed. |
| Oct. 25, 1993 | (Respondent) Motion to Shorten Time to Respond to Respondent`s First Request to Produce; Respondent`s First Request to Produce; Answer and Affirmative Defenses to Administrative Complaint and Emergency Order of Suspension filed. |
| Oct. 22, 1993 | Motion To Amend; Agency referral letter; Administrative Complaint and Emergency Order Of Suspension; Request for Hearing, Letter Form filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Mar. 15, 1995 | Agency Final Order | |
| Dec. 12, 1994 | Recommended Order | Veterinarian conspired to give racehorse substance in an attempt to enhance its performance. |
