STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WILLIAM MARCH, )

)

Petitioner, )

)

vs. ) CASE NO. 94-1251F

)

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, ) DIVISION OF PARI-MUTUEL WAGERING, )

)

Respondent. )

)

FINAL ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Susan B. Kirkland, held a formal hearing in this case by video teleconference on October 18, 1994, in Tallahassee and Miami, Florida.

APPEARANCES

For Petitioner: William March, Pro Se

7875 Southwest 40th Street, Suite 227

Miami, Florida 33155

For Respondent: Richard A. Grumberg, Senior Attorney

Department of Business and Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-1007

STATEMENT OF THE ISSUES

Whether Petitioner is entitled to attorney's fees and costs pursuant to Section 57.111, Florida Statutes, and is so, what amount.

PRELIMINARY STATEMENT

On March 7, 1994, Petitioner, William March (March), filed a Motion to Tax Costs and Affidavits, requesting that a final order be entered granting him costs and attorney's fees pursuant to Section 57.111, Florida Statutes, against the Respondent, Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering (DBPR), in connection with March v. Florida Department of Business Regulation, 629 So.2d 290 (Fla. 3d DCA 1994).

The case was scheduled for final hearing on June 27, 1994. The parties made a joint ore tenus motion for continuance which was granted. The hearing was rescheduled for July 12, 1994. On June 30, 1994, a joint motion for continuance was filed. The final hearing was rescheduled for September 16,

1994. The Petitioner made an ore tenus motion for continuance on September 15, 1994, and the case was again rescheduled for hearing on October 18, 1994.

At the final hearing, March testified in his own behalf and presented the testimony of Dr. Donald Shang. Petitioner's Exhibits 1-4, and 6-11 were admitted in evidence. Petitioner's Exhibit 5 was proffered. DBPR called Walter Blum and Pat Russell as witnesses. Respondent's Exhibits 1-3 were admitted in evidence.

At the final hearing the parties agreed to file proposed final orders within ten days of the filing of the transcript. The transcript was filed on November 1, 1994. On November 9, 1994, March filed a Motion for Extension of Time For Filing Proposed Final Orders. The motion was granted and the parties were given until November 18, 1994, to file proposed final orders. The parties timely filed their proposed final orders. The parties' proposed findings of facts are addressed in the Appendix to this Final Order.

FINDINGS OF FACT

1. Petitioner, William March (March), is a resident of Miami, Florida. He is a horse trainer and is licensed by the Respondent, Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering (DBPR).

   
   

2. March is self-employed. He has a public stable and trains horses for different clients. His clients do not direct his actions. He charges his clients a set rate per day plus expenses. He also receives a certain percentage of the purse for winning horses. March carries workers' compensation insurance. His income tax returns reflect a sole proprietorship. He does not have more than 25 full-time employees. March did not present evidence on the amount of his net worth; thus, I cannot determine whether his net worth is less than $2 million.

   
   

3. In April, 1992, March was the trainer of record for a horse named Miami's Finest. On April 22, 1992, Miami's Finest finished first place in the fifth race at the Tampa Bay Downs Racetrack.

   
   

4. DBPR took a urine specimen from Miami's Finest after the race. The specimen was sent to DBPR's laboratory in Tallahassee to be analyzed.

   
   

5. Four tests were conducted on the sample. The first test is known as a TLC test and is a screening tool. The test resulted in the sample being passed.

   
   

6. The second test is known as an ELISA test and is a separate screening procedure. The result of this test was that the sample was called "suspicious."

   
   

7. Following the suspicious call on the ELISA test, the sample was sent for confirmation in keeping with the normal procedure. The first confirmation test resulted in an inconclusive finding, though the test did indicate the presence of particular ions for a metabolite of acepromazine. The decision was made to run a second confirmation test.

   
   

8. The second confirmation test utilized a re-extraction based on enzyme hydrolysis which provides a cleaner residue to analyze. The test then confirmed the presence of a metabolite of acepromazine based on two criteria, retention time and ions. The positive result was signed by the Bureau Chief and a reviewing Chemist Administrator.

9. On June 5, 1992, Walter Blum, State Steward, received a copy of a memorandum from Jane F. Foos, Chief of the Bureau of Laboratory Services, to William E. Tabor, Director of the Division of Pari-Mutuel Wagering. The memorandum stated that a specimen of horse urine designated as sample number 808691 was analyzed and found to contain "2- (1-hydroxyethyl) promazine, a metabolite of acepromazine (tranquilizer), and/or a derivative thereof)."

   
   

10. Sample information form (DBR form 13-003) indicated that sample 808691 was taken from a horse named Miami's Finest at the Tampa Bay Downs racetrack on April 22, 1992. March was listed as the trainer.

    
    

11. On June 6, 1992, March met with Blum and the other stewards. March was told of the positive results of the laboratory tests and officially notified of the charges against him. He told the stewards that he had treated Miami's Finest with acepromazine on April 20, 1992, because the horse was high strung and he was going to ship her to Tampa to run in a race on April 22, 1992.

    
    

12. March waived formal notice of hearing. A hearing was held before the stewards on June 25, 1992.

    
    

13. Prior to the hearing, March had requested a split sample of the urine for testing by a laboratory. There was an insufficient amount of urine available for a split sample test.

    
    

14. The Rulings of the Judges/Stewards dated June 25, 1992, found that March violated Sections 550.241(1) and (3)(a), Florida Statutes, suspended March for 25 days effective, June 27, 1992, disqualified Miami's Finest as the first place winner of the fifth race on April 22, 1992, at Tampa Bay Downs, and ordered that the first place money be returned to the horsemens bookkeeper and redistributed.

    
    

15. March appealed the Stewards rulings to the Division of Pari-Mutuel Wagering (Division). The Stewards rulings were affirmed by the Division. March appealed the decision of the Division to the Third District Court of Appeal. In March v. Florida Department of Business Regulation, Division of Pari-Mutuel Wagering, 629 So.2d 290, (Fla. 3d DCA 1993), the court reversed, stating that the Division had violated its own rules by not providing a split sample and not staying the hearing once the request for the split sample was made.

    
    

    CONCLUSIONS OF LAW

    
    

16. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. Sections 57.111 and 120.57(1), Florida Statutes.

    
    

17. Section 57.111(4)(a), Florida Statutes provides:

    
    

    Unless otherwise provided by law, an award of attorney's fees and costs shall

    be made to a prevailing small business party in any adjudicatory proceeding or administra- tive proceeding pursuant to chapter 120 initiated by a state agency, unless the actions of the agency were substantially justified or special circumstances exist which would make the award unjust.

18. A small business party is defined in Section 57.111(3)(d)1.a., Florida Statutes, to include the following:

    
    

    A sole proprietor of an unincorporated business, including a professional practice, whose principal office is in this state, who is domiciled in this state, and whose business or professional practice has, at the time the action is initiated by a state agency, not more than 25 full-time employees or a net worth of not more than $2 million, including personal and business assets.

    
    

19. When a final order has been entered in favor of a small business party and such order has not been reversed on appeal or the time for seeking review of the order has expired, the small business party is considered to have prevailed. Section 57.111(3)(c). DBPR stipulated that March prevailed.

    
    

20. A state agency is substantially justified in initiating a proceeding if it had a reasonable basis in law and in fact at the time it initiated the proceeding. Section 57.111(3)(e).

    
    

21. March's business is that of horse trainer and is a sole proprietorship. Based on his income tax return for 1992, I conclude that he had less than 25 full-time employees. No evidence was presented to establish that his net worth, including business and personal assets, was $2 million or less at the time the action was initiated by DBPR. Thus, March did not establish that he is a small business party as defined by Section 57.111(3)(d)1.a., Florida Statutes.

    
    

22. DBPR has established that it was substantially justified at the time that it initiated the action against March. The action was initiated on June 6, 1992, when the Stewards met with March and apprised him of the charges. At that time the decision to prosecute was based on the positive laboratory findings of a metabolite of acepromizine in the urine of Miami's Finest. It was a violation of Section 550.241, Florida Statutes (1991), to race a horse with such a drug and to cause to be administered such a drug to a horse which will result in a positive test for such substance based on samples taken from the horse immediately prior to or immediately after the racing of the horse. Thus, DBPR had a basis both in law and in fact to initiate the proceedings against March on June 6, 1992.

    
    

23. March has failed to establish that he is entitled to attorney's fees and costs pursuant to Section 57.111, Florida Statutes.

Based on the foregoing Findings of Fact and Conclusions of Law, it is ORDERED that William March's request for attorney's fees and cost against

the Department of Business and Professional Regulation, Division of Pari-Mutuel

Wagering is DENIED.

DONE AND ENTERED this 20th day of December, 1994, in Tallahassee, Leon County, Florida.

SUSAN B. KIRKLAND

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 20th day of December, 1994.

APPENDIX TO FINAL ORDER, CASE NO. 94-1251F

To comply with the requirements of Section 120.59(2), Florida Statutes (1993), the following rulings are made on the parties' proposed findings of fact:

Petitioner's Proposed Findings of Fact. Section A

1. Paragraphs 1-4: Rejected as subordinate to the facts

   actually found.

2. Paragraph 5: Accepted in substance.

   
   

   Section B

3. Paragraphs 1-4: Accepted in substance.

4. Paragraph 5: Rejected as unnecessary detail.

5. Paragraphs 6-7: Accepted in substance.

6. Paragraph 8: The first sentence is rejected as recitation of testimony. The second sentence is rejected as constituting argument.

7. Paragraph 9: Accepted in substance.

8. Paragraph 10: Rejected as constituting a conclusion of law.

9. Paragraphs 11-12: Accepted in substance.

Respondent's Proposed Findings of Fact.

1. Paragraph 1: Accepted in substance.

2. Paragraph 2: Accepted that March's business is a sole proprietorship with its principal office in Florida and that he had less than 25 full-time employees. The remainder is rejected as constituting a conclusion of law or subordinate to the facts actually found.

3. Paragraphs 3-4: Accepted in substance.

4. Paragraph 5: Rejected as unnecessary detail and a listing of the documents included in Petitioner's Composite Exhibit 6.

5. Paragraphs 6-10: Accepted in substance.

6. Paragraphs 11-14: Rejected as subordinate to the facts actually found.

7. Paragraph 15: Rejected as unnecessary detail, constituting argument, constituting recitation of testimony and a listing of the contents of Respondent Exhibit 2.

8. Paragraph 16: Rejected as constituting argument and recitation of testimony.

9. Paragraph 17: Rejected as not supported by the greater weight of the evidence.

10. Paragraph 18: Rejected as constituting a conclusion of law.

COPIES FURNISHED:

Richard A. Grumberg, Esquire Joseph M. Helton, Jr., Esquire

Department of Business and Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-1007

William March Suite 227

7875 Southwest 40th Street Miami, Florida 33155

William E. Tabor, Director Department of Business Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

Jack McRay

Acting General Counsel

Department of Business Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this final order is entitled to judicial review pursuant to Section 120.68, Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate procedure. Such proceedings are commenced by filing one copy of a Notice of Appeal with the agency clerk of the Division of Administrative Hearings and a second copy, accompanied by filing fees prescribed by law, with the District Court of Appeal, First District, or with the District Court of Appeal in the appellate district where the party resides. The Notice of Appeal must be filed within 30 days of rendition of the order to be reviewed.

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DISTRICT COURT OPINION

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

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DISPOSED OF.

WILLIAM MARCH, IN THE DISTRICT COURT OF APPEAL OF FLORIDA THIRD DISTRICT

Appellant, JULY TERM, 1995

vs. CASE NO. 95-164

DOAH CASE NO. 94-1251F

FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION, DIVISION OF PARI-MUTUEL WAGERING,

Appellee.

/ Opinion filed August 2, 1995.

An Appeal from the Division of Administrative Hearings. Steven Wisotsky, for appellant.

Kathryn L. Kasprzak, (Tallahassee), for appellee. Before SCHWARTZ, C.J., and LEVY, and GREEN, JJ.

PER CURIAM.

Affirmed.

MANDATE

DISTRICT COURT OF APPEAL OF FLORIDA THIRD DISTRICT

DCA #95-164 WILLIAM MARCH

vs.

FLORIDA DEPT. OF BUSINESS AND PROFESSIONAL REGULATION, etc.

This cause having been brought to this Court by appeal, and after due consideration the Court having issued its opinion;

YOU ARE HEREBY COMMANDED that such further proceedings be had in said cause in accordance with the opinion of this Court attached hereto and incorporated as part of this order, and with the rules of procedure and laws of the State of Florida. Case No. 94-1251F DEPT.

WITNESS, The Honorable ALAN R. SCHWARTZ

Chief Judge of said District Court and seal of said Court at Miami, this 29th day of September, 1995.

LOUIS J. SPOLLONE

Clerk District Court of Appeal of Florida, Third District

Docket for Case No: 94-001251F

Orders for Case No: 94-001251F