STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION, DIVISION OF PARI-MUTUEL WAGERING,
vs.
Petitioner,
Case No. 14-4716PL
KIRK M. ZIADIE,
Respondent.
/ DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION,
DIVISION OF PARI-MUTUEL
WAGERING,
vs.
Petitioner,
Case No. 15-2326PL
KIRK ZIADIE,
Respondent.
/
RECOMMENDED ORDER
These consolidated cases came before Administrative Law Judge F. Scott Boyd in Fort Lauderdale, Florida, on August 25 through 27, 2015; by video teleconference at sites in Lauderdale Lakes and Tallahassee, Florida, on September 1, 2015; and again in Ft. Lauderdale, Florida, on September 23 and 24, 2015.
APPEARANCES
For Petitioner: Richard McNelis, Esquire
Caitlin R. Mawn, Esquire Department of Business and
Professional Regulation Division of Pari-Mutuel Wagering 1940 North Monroe Street, Suite 40
Tallahassee, Florida 32399
For Respondent: Bradford J. Beilly, Esquire
John Daniel Strohsahl, Esquire Bradford and Strohsahl, P.A.
1144 Southeast Third Avenue Fort Lauderdale, Florida 33316
STATEMENT OF THE ISSUES
Whether Respondent raced an animal with a drug in violation of section 550.2415(1)(a), Florida Statutes (2012),1/ as alleged in the Administrative Complaints, and, if so, what sanction is
appropriate.
PRELIMINARY STATEMENT
Petitioner, Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering ("Petitioner" or "Division"), served a Second Amended Administrative Complaint on Respondent, Mr. Kirk Ziadie, on September 10, 2014. The complaint alleged that Respondent was the trainer of record of thoroughbred horses that raced at Florida racetracks
with restricted drugs on dates from July 4, 2012, through September 27, 2012, charging six counts of violation of statutes and rules governing pari-mutuel racing. Respondent disputed material facts alleged in the complaint and timely requested an
administrative hearing. The case was forwarded to the Division of Administrative Hearings ("DOAH") for assignment of an administrative law judge on October 10, 2014, and was assigned DOAH Case No. 14-4716PL ("Ziadie I").
On March 17, 2015, Petitioner served Respondent with a First Amended Administrative Complaint alleging in 16 additional counts that he was the trainer of record of horses racing with restricted drugs in races that took place from March 13, 2013, through December 7, 2014. Respondent again disputed material facts alleged in the complaint and timely requested an administrative hearing. The case was forwarded to DOAH and was assigned Case No. 15-2326PL ("Ziadie II").
The final hearing in Ziadie I began on August 25 through 27, 2015, and continued on September 1, 2015. The question arose during hearing as to whether it might be
efficient to consolidate the two cases. Neither party offering any reason why this should not be done, and no prejudice to either party being found, an Order of Consolidation was issued on September 2, 2015. The Order provided that the testimony and evidence admitted up to that point in the hearing would be considered just as if it had been admitted after consolidation. The hearing resumed in the consolidated cases on September 23 and 24, 2015.
The parties stipulated to certain facts, which were accepted at hearing and are included among those set forth below. Petitioner presented the testimony of Ms. Margaret Wilding, associate director of the University of Florida Racing Laboratory; Dr. William Watson, D.V.M., the veterinarian manager at the Division; Mr. Ivan Urrutia, formerly a chief veterinary assistant at the Division; Ms. Jill Blackman, the Division's chief operations officer; Mr. Patrick Russell, a chemist at the University of Florida Racing Laboratory; Mr. Terry Mills, an analytical chemist and accreditation manager for American National Standards Institute-American Society for Quality National Accreditation Board; and Dr. Cynthia Cole, a veterinary pharmacologist and director of research and development at Mars Veterinary.
Respondent objected at hearing to the introduction of Petitioner's Exhibits P-7, P-8, and P-17 through P-20, which were test results and supporting documents from the laboratory, on the grounds that the samples were obtained and tested contrary to the procedures of the governing rule and pursuant to a manual that constituted an unadopted rule. Ruling on the objection was reserved. After careful consideration, the objection to admissibility of these exhibits is overruled, as under the statute "any evidence" that is relevant is admissible. All of Petitioner's exhibits, P-1 through P-21, are therefore
admitted. However, based upon provisions in chapters 120 and 550, Florida Statutes, Exhibits P-7, P-17, and P-18, relating to the serum specimens, were not used to prove the presence of restricted drugs, as discussed in detail below.
Respondent presented the testimony of Mr. Theodore Mizarak, a licensed horseman in Florida, Indiana, Ohio, and Kentucky;
Mr. Kent Stirling, executive director of the Florida Horsemen's Benevolent and Protective Association; Mr. Kevin Scheen, state steward manager at the Division; Dr. Steven Barker, a chemist and professor at the School of Veterinary Medicine at Louisiana State University; Mr. Peter Lawson, a management and strategy consultant and thoroughbred horse owner; Mr. Bradford Beilly, counsel for Respondent; and Respondent. Respondent offered 27 exhibits, R-1 through R-27, all of which were admitted.
The seven-volume Transcript of the hearing was filed at DOAH on October 30 and November 4, 2015. Petitioner's Proposed Recommended Order was timely filed. Respondent's proposed recommended order was received about 5:05 p.m. on the filing deadline, November 19, 2015, and under the rule, was filed as of 8:00 a.m. the following day. No prejudice was found and both proposed recommended orders were carefully considered in the preparation of this Recommended Order.
On November 25, 2015, Respondent Ziadie's Motion to Strike Portion of Petitioner's Proposed Recommended Order or Otherwise
Bring to the Attention of the Court an Inaccuracy in a Finding of Fact Contained in Petitioner's Proposed Recommended Order was filed. Petitioner's Response in Opposition to Respondent's Motion to Strike Portion of Petitioner's Proposed Recommended Order was filed on December 1, 2015. Respondent's motion is denied. While Petitioner's citation to Florida Administrative Code Rule 28-106.217 is inapposite, as it pertains to exceptions filed with an agency after a recommended order is issued, Petitioner's basic position that Respondent's opportunity to challenge any findings and conclusions comes after the recommended order is issued is correct. Neither point raised by Respondent warrants departure from that general procedure. The points are disputable based upon the record, and neither is critical to the issues as they were resolved in this Recommended
Order.
FINDINGS OF FACT
The Division is the state agency charged with regulating pari-mutuel wagering in the state of Florida, pursuant to chapter 550, Florida Statutes (2015).
At all times material, Mr. Ziadie held a pari-mutuel wagering occupational license, number 701515-0121, issued by the Division.
At all times material, Mr. Ziadie was subject to chapter 550 and the implementing rules in Florida Administrative Code Chapter 61D-6.2/
Under section 550.2415(1)(a), an animal may not be raced with any drug. It is a violation for any person to administer a drug to an animal which results in a positive test in samples taken from the animal after the race.
Under section 550.2415(1)(c), "[t]he finding of a prohibited substance in a race-day specimen constitutes prima facie evidence that the substance was administered and was carried in the body of the animal while participating in the race."
Under rule 61D-6.002(1), "[t]he trainer of record shall be responsible for and be the absolute insurer of the condition of the . . . horses he/she enters to race."
As reflected in Division records kept in accordance with the 2010 Equine Detention Barn Procedures Manual ("the Manual"), which was in effect at all relevant times, Mr. Ziadie was the trainer of record of the thoroughbred horses from which samples were obtained in Ziadie I and Ziadie II.
Mr. Ziadie is substantially affected by the Division's intended action.
The equine detention barn is the site at each licensed racetrack in Florida where employees of the Division collect
urine and blood samples from racehorses. It includes a fenced- in and secured area that generally has at least six stalls, as well as an area for walking the horses after a race.
After a horse has been selected for sample collection (usually the top two or three finishers and sometimes a "special" that has been added at the request of the stewards), a Division employee tags the horse and accompanies it back to the detention barn. Along the way, a Division veterinary assistant assigned to the horse assumes custody and escorts the horse. At the barn, the horse is positively identified by means of a tattoo on the underside of its lip. The horse is walked to cool it down and sometimes bathed, and then taken into a stall for sample collection. Following their respective races,
Mr. Ziadie's horses were immediately taken in this fashion to the detention barn for the taking of urine and blood samples.
The Division publishes the Manual under the direction of Ms. Blackman as the chief of operations. The Manual is used at all horse racing facilities in the state of Florida and was last updated on June 25, 2010.
The Manual provides that veterinary assistants, chief veterinary assistants, detention barn security guards, and detention barn supervisors "study, become completely familiar with, and put into practice" the procedures outlined in the Manual. It describes seven steps in chain-of-custody
procedures, three of which are "collecting the specimen, sealing the specimen, and completing the required forms," and describes detailed procedures in this "strict sequence of events that must be followed."
As the Manual makes clear, Division employees at the detention barns in the state of Florida are all required to follow the procedures outlined in the Manual "each and every time" they work with samples. They do not have discretion not to follow its requirements.
Mr. Stirling credibly testified that in his capacity as executive director of the Florida Horseman's Benevolent and Protective Association, a position he has held for 20 years, he was an advocate for the horsemen. He attended all of the workshops for rules relating to medication overages as one of his primary duties. The centrifuging process, extraction of the serum, and sealing of the serum specimen as described in detail in the Manual were never discussed at a rulemaking hearing. These procedures are not a part of rule 61D-6.005, adopted in 2001. As he testified, Mr. Stirling was not even aware of these procedures until a month or two before the final hearing in these cases. The Manual has not been adopted under the procedures of section 120.54.
At the time of these races, rule 61D-6.005, effective November 19, 2001,3/ governed the procedures for the taking of
urine and blood samples from the horses. Subsection (3) provided in part:
The specimen shall be sealed in its container, assigned an official sample number which is affixed to the specimen container, and the correspondingly numbered information portion of the sample tag shall be detached and signed by the owner, trainer, groom, or the authorized person as a witness to the taking and sealing of the specimen.
Subsection 4.5 of the Manual describes the sample tag in greater detail:
RL 172-03 is a self-adhesive sequentially numbered bar-coded, three part form (blood label, urine label and card) provided by the University of Florida Racing Laboratory that is used to catalog specimens by assigning them "Specimen Numbers." As specimens are collected, information regarding the animal from which the sample was collected is written on the bottom of this form. The top two portions of the form (Blood, Urine) are completed with the Track Number and Collection Date. The applicable top portions of the form are then separated and applied to the urine specimen cup and/or evergreen blood tube. The bottom portion, or Specimen Card, is completed and appropriately signed and is sent to the Tallahassee Office of Operations to be filed.
The sample tag thus consists of three portions: the numbered portion designated for the blood specimen ("blood label"), the numbered portion designated for the urine specimen ("urine label"), and the numbered portion containing additional information about the animal and trainer that is to be signed by
the witness ("card"). In the sampling procedures followed in these cases, the blood label was not affixed to the collection tube. The blood label, from which the card portion was "detached," was affixed to the evergreen blood tube. This was consistent with the governing rule, as well as the Manual. The evergreen tube is the specimen container for the serum.
The sampling procedures followed with respect to the serum and urine samples taken in Ziadie I and Ziadie II were in compliance with the procedures set forth in the Manual.
As stated in subsection 4.4 of the Manual, "[s]ealing the sample ensures the specimen does not spill during shipment to the laboratory and assures all parties that the sample has not been tampered with." The same purposes are served by sealing the serum specimen.
After the blood samples were taken by the veterinarian, they were not "sealed" in the collection tubes. The fact that the collection tubes are air tight prior to and after the taking of the blood and initially contain a partial vacuum to facilitate collection, does not constitute "sealing" of the specimen in its container for purposes of the rule. As Dr. Watson testified:
Q: Okay. Are these 15 milliliter tubes sealed?
A: Well, they're sealed in that there's a vacuum in there and in order to draw the
blood efficiently, that vacuum has to be there. If that seal is broken then it would not work. But, as far as sealing for legal purposes, they're not sealed at that time.
There's a process that it has to go through in order to extract the serum.
The three collection tubes are not the specimen container, but the last three digits of the number from the blood label affixed to the specimen container were written on each blood collection tube with a black "Sharpie" type marking pen to ensure control of the sample.
The Manual prescribes detailed procedures for spinning the blood collected from the race horses in a centrifuge to extract the serum.
After the blood was centrifuged, and the serum was poured into the evergreen tube, the serum was sealed with evidence tape, as described in the Manual, and the chief veterinary assistant put his initials over the seal. This constituted "sealing" of the specimen in its container. Subsection 4.6 of the Manual provides:
Serum is poured into applicable (numbered) "evergreen" tubes. Each "evergreen" tube is immediately properly sealed with evidence tape.
Rule 61D-6.005 does not make any reference to spinning the blood in the centrifuge to extract serum, the pouring of serum into an evergreen tube, the sealing of the evergreen tube with evidence tape, or the freezing of the specimen. The Manual
establishes additional policies and procedures not contained in the rule.
The serum must be separated from the blood because whole blood cannot be frozen without damage that would affect its usefulness in laboratory testing. Centrifuging facilitates the separation of the serum from the whole blood. The transfer of the separated serum from the glass collection tubes to the plastic evergreen tube is then done for two reasons. First, the plug that helps separate the serum can allow the blood cells to seep around and return to the serum, where they can release hemoglobin and iron, which can distort laboratory analysis. Second, using the plastic evergreen tube saves shipping weight and reduces the incidence of breakage during shipping.
The centrifuged collection tubes are stored in a locked refrigerator. The opening of the centrifuged collection tubes and the pouring of the serum into correspondingly numbered evergreen specimen containers is carefully performed by Division employees with the intent to avoid contamination. The sealed evergreen specimen containers then remain in a locked freezer until they are shipped to the laboratory. The evidence was clear and convincing that the serum specimens in these consolidated cases were derived from the blood sample tubes bearing the same last three numbers as the tag which was
prepared when the blood was taken. The serum specimens came from Mr. Ziadie's horses.
Dr. Barker testified that the "free pour" of the serum was the point at which the specimen was most vulnerable, and that contamination or tampering was possible. He stated he would have preferred more supervision, witnessing, and documentation as to who was doing what, at what time. Dr. Cole concurred that there is always a possibility of contamination when a sample is transferred from one container to another. However, the free pour method used to transfer the serum from the collection tubes into the evergreen specimen container is one of the better approaches, as opposed to using a pipette or other method that would put something into the sample. Contamination from the free pour of the serum is unlikely.
There was no evidence introduced to suggest that misidentification, tampering, or contamination of the specimens was likely or probable.
The state veterinarian who took the blood sample from each horse signed PMW Form 504, a Daily Record of Sample Collection, indicating that this had been done. After centrifuging the whole blood in the collection tubes, at the end of the day the state veterinarian usually leaves the collection tubes with the chief veterinary assistant, who pours the separated serum from each collection tube into the
correspondingly numbered evergreen container and seals it. Sometimes, the state veterinarian stays to observe the transfer of the serum to the evergreen specimen container.
No document is signed to note the time that the state veterinarian leaves the samples at the detention barn or the time that the chief veterinary assistant opens the collection tubes and transfers the serum. Custody of the samples remains with Division personnel throughout this process. No transfer of custody takes place until the specimen containers are shipped to the laboratory.
In each instance of sampling in these cases, the owner's witness signed the card portion of the sample tag (Form RL 172-03) after the taking of the urine and blood samples.
In each instance of sampling in these cases, the owner's witness signed the card portion of the sample tag after the sealing of the urine specimen in its container, but before the sealing of the serum specimen in its container, the evergreen tube.
In each instance of sampling in these cases, the owner's witness did not observe the extraction of the serum or the sealing of the serum specimen in its container with the evidence tape. The witnesses could have remained to watch those procedures had they requested to do so. Subsection 4.6 of the Manual states, "the owner, trainer of record or designated
authorized witness may leave with the released animal or may elect to witness the conclusion of the collected blood specimen processing and sealing cycle." According to Division policy, two signs are posted in the detention barns to advise owners' witnesses that they may remain to witness the centrifuge process and sealing of the sample. Specific testimony that a sign was in place at the exact times sample collection took place in each of these races, or the exact location that it was posted, was lacking. However, there was more general testimony from Dr.
Watson that signs have been posted ever since he has been employed.
Dr. Watson credibly testified that, during the five years he has been working at the tracks, no owner's representative has ever stayed to watch the centrifuging of the samples or the sealing of the serum specimen container. The pouring of the collection tubes into the specimen container takes place at the end of the racing day, after all of the horses have departed from the detention barn. It would be very inconvenient for an owner's witness to remain until the serum specimens were sealed.
The procedures that were followed--set forth in the Manual--which allowed the owner's witness to sign the sample tag after witnessing the taking of the blood but before the sealing of the specimen, were not in compliance with rule 61D-6.005(3),
quoted above, which required the owner's representative to sign as a witness to both the taking and sealing of the specimen.
Even had it been clearly shown that signs advising the owners' representatives that they were allowed to stay and witness the sealing of the specimen container were prominently displayed on every occasion on which the samples were taken, this would not bring the procedure being followed into compliance with rule 61D-6.005(3). The requirement that the authorized representative must witness not only the taking, but also the sealing of specimens, is a provision directly related to maintaining integrity in the sample collection process. Such deliberate disregard of the plain language of the rule directly affects the fairness of the entire blood sampling procedure.
The urine and serum samples in these cases were properly delivered to the University of Florida racing laboratory and the integrity of the samples was intact.
The laboratory conducts an initial screening of each urine sample in a process of elimination to weed out negative samples that do not contain any suspected drugs. This screening looks at a large number of samples and screens them broadly.
The suspicious samples are then subjected to confirmation testing, in either serum or urine, testing a fewer number of samples and targeting for detection of specific drugs.
The Association of Racing Commissioners International create Uniform Classification Guidelines for Foreign Substances. Classes range from class I drugs, which have no therapeutic value and are most likely to affect the outcome of a race, to class V drugs, which have the most therapeutic value and the least potential to affect the outcome of a race. Class III, IV, and V drugs all have some therapeutic value.
Clenbuterol is a bronchodilator, a drug which may be prescribed for horses for therapeutic purposes. If a horse had blood or sand in his lungs after a race, he might be placed on clenbuterol for five to eight days, twice a day, and the medication would clean the lungs out completely. Clenbuterol also has the capacity to be a repartitioning (conversion of fat into muscle) agent. It is not as effective as an anabolic steroid, but it does have the capacity for building muscle. Rule 61D-6.008 does not permit any clenbuterol in the body of a racing animal on race day. Clenbuterol is a Class III drug under the Uniform Classification Guidelines for Foreign Substances.
Phenylbutazone is a nonsteroidal anti-inflammatory drug effective in treating fever, pain, and inflammation. It was credibly described as having effects similar to aspirin. Rule 61D-6.008(2)(a)2. provided in part that, "[p]henylbutzone may be administered to a horse providing . . . the post-race
serum sample of such horse contains a concentration less than
2 micrograms (mcg) of Phenylbutazone or its metabolites per milliliter (ml) of serum." Phenylbutazone is a class IV drug under the Uniform Classification Guidelines for Foreign Substances.
The laboratory routinely receives only the information on the urine and blood labels with the specimens and does not know the identity of the horse or trainer. Samples tested in the laboratory are assigned an "LIMS" number internal to the laboratory and do not contain any information that would identify the horse or trainer. The technicians who actually conduct the tests are not informed of the name of the horse or trainer involved. Once the Division is advised by a laboratory report that a sample has "tested positive" for a particular substance, the Division matches the laboratory report to the sample tag, which has been kept under lock and key, to determine the identity of the horse and trainer. The stewards and trainer are then notified.
After the trainer is notified of positive results, he has the opportunity to request a split sample. In this procedure, a portion of the specimen is shipped from the University of Florida laboratory to an outside laboratory for independent analysis.
There is a minimum amount of a drug that can be detected scientifically with a reliable concentration range. As the scientific capability to detect a drug improves, this testing level can be lowered by a laboratory. The instrumentation can almost always detect the presence of the drug below the reliable concentration range that establishes the testing level.
As Ms. Wilding testified, a "withdrawal time" is the time interval prior to sample collection at which the last administration of a drug can take place to allow the drug to be cleared from the horse's system so that no "positive" would be reported in that sample based upon the test detection level or reporting point for that particular drug.
Mr. Stirling testified that based upon informal conversations with Dr. Tebbet, Dr. Cole, and Dr. Sams, former directors of the laboratory, he had disseminated information to horsemen for years that a five-day withdrawal time would be appropriate for clenbuterol.
From July 1, 2010, until June 30, 2011, there were four clenbuterol positives from horse race tracks in Florida.
From July 1, 2011, until June 30, 2012, there were
13 clenbuterol positives from horse race tracks in Florida.
During this same fiscal year, the laboratory also found the presence of clenbuterol in 193 additional samples, but did not
deem them "positives." In these samples, the laboratory detected clenbuterol in a concentration of less than
25 picograms per milliliter.
Dr. Barker credibly testified that the fact that
193 findings of clenbuterol at less than 25 picograms per milliliter were not called "positives" indicated that either the laboratory or the Division had some form of confirmation level established.
As Ms. Wilding testified, changes to the protocol as to the amount of a drug that must be present in a sample before that sample will be called "positive" are made through revisions to the laboratory's standard operating procedures (SOPs).
Ms. Blackman testified that she had conversations with Ms. Wilding at the laboratory "sometime in, maybe, the
summer of 2012" about the ability of the laboratory to calibrate their instruments to detect clenbuterol at the lowest level, based upon Ms. Blackman's understanding that clenbuterol was being abused, in that it was being prescribed not just for its bronchodilator effect, but also for its anabolic effects.
SOP DCN: R1.07.04.05.04-07, entitled "Extraction of Clenbuterol from Horse Serum or Plasma and Identification by Liquid Chromatography-Tandem Mass Spectrometry," effective April 27, 2012, established the low end of the calibration curve at 10 picograms per milliliter. The amount of the lower
positive control was 25 picograms per milliliter. The SOP provided: "If the mean concentration of clenbuterol in the test sample is less than the lower end of the calibration curve, it will not be reported."
From July 1 until December 31, 2012, there were nine clenbuterol positives from horse race tracks in Florida. The first Florida positive called by the laboratory for a thoroughbred race horse whose post-race serum sample contained a level of clenbuterol less than 25 picograms per milliliter of serum was for the first race in Ziadie I, on
July 4, 2012, which was reported as a positive with a level of
18 picograms per milliliter. Testing also confirmed in serum the presence of phenylbutazone in that first sample, in the amount of 2.3 micrograms per milliliter, an amount in excess of the 2 micrograms per milliliter which is permitted. The laboratory results were sent to the Division by letter dated August 6, 2012.
The initial confirmation of the phenylbutazone overage and clenbuterol positive from the race of July 4, 2012, was originally sent to the stewards to resolve but was later taken from the stewards and turned into an administrative complaint.
On August 9, 2012, a long article appeared in the Miami New Times entitled "Cheaters Prosper at Calder Park." The
article described a racing industry tainted by drug violations
and criticized the Division for lax regulations and poor enforcement. The article identified Mr. Ziadie by name, giving a short biography and saying there were signs of "systematic rulebreaking" over his long racing career.
Ms. Blackman saw the article. She also forwarded an e-mail attaching the article to Ms. Wilding at the laboratory.
Clenbuterol was confirmed in serum taken after the other four races of the Ziadie I complaint, held on August 17, August 30, September 14, and September 27, 2012. The concentration of clenbuterol in those samples ranged from 10 to
21 picograms per milliliter. The results from the laboratory were provided to the Division on September 25, October 1 (two races), and October 16, 2012. At Mr. Ziadie's request, the samples were split, and an independent laboratory confirmed the presence of clenbuterol in each sample.
In late December 2012, the Division gave the laboratory authority to begin conducting confirmation testing for clenbuterol in urine rather than in serum. In the beginning of 2013, the laboratory changed to a 140 picogram per milliliter confirmation level for clenbuterol in urine. The Division did not give notification to the horsemen or veterinarians of these changes.
From January 1, 2013, until June 30, 2013, there were
154 clenbuterol positives from the horse race tracks in Florida.
Dr. Barker testified:
So you would be able to see clenbuterol in urine for a much longer period of time.
And, of course, that's also why ARCI now has a urine threshold instead of a plasma threshold because the idea was to push it out as far as they could and still be able to call it. They couldn't do that sufficiently in blood, they felt, so they converted it to a urine threshold. So if you go from a plasma threshold to a urine threshold, particularly the-–if it's a threshold that ARCI has recommended, you know, ARCI threshold is 140 picograms per ml in urine, and that's based on using the lowest dose and a 14-day withdrawal.
Well, if you had been using the lowest dose and had been following a five-day withdrawal, you would come up positive. If you had been using the lowest dose and had been following a ten-day withdrawal, you're going to come up positive. And so if people, trainers and veterinarians, were not being informed of a change in how the laboratory was testing and interpreting data, and basically was working from a position that required a longer withdrawal time and the horsemen didn't know that, well, you're going to-–you should get all kinds of positives.
Dr. Barker's explanation of the consequences of changing from a serum confirmation to a urine confirmation for clenbuterol is credited. His testimony also at least partially explains why there is not a clear correlation between the concentrations of clenbuterol detected in serum with the concentrations detected in urine from samples taken at the same time. The amounts of clenbuterol and the times it was administered to the horse
remain unknown variables, and clenbuterol is detectable for a longer period of time in urine. Differences might also be explained by the amount of water the horse drank, or other factors.
On or about February 8, 2013, following the great increase in the number of positive calls for clenbuterol,
Mr. Stirling posted a notice regarding withdrawal times at the tracks and published it in the "overnights" that went to trainers. The notice stated:
According to the Department [sic] of Pari Mutuel Wagering the withdrawal time for clenbuterol is the same as it was previously (5 days) at the proper dosage.
If you had a recent positive for clenbuterol and used the old/new withdrawal time there should be no administrative action taken against you.
At either the end of February or the beginning of March of 2013, the Division requested the laboratory to return to clenbuterol confirmation screening in serum, rather than urine.
SOP DCN: R1.07.04.05.04-09, entitled "Extraction of Clenbuterol from Horse Serum or Plasma and Identification by Liquid Chromatography-Tandem Mass Spectrometry," effective March 7, 2013, established the low end of the calibration curve at 5 picograms per milliliter. The low end of the calibration
curve reflects the lower limit of detection at which the SOP can
detect a drug with a reliable concentration range. The amount of the lower positive control was set at 15 picograms per milliliter. The SOP provided: "If the mean concentration of clenbuterol in the test sample is less than the lower end of the calibration curve, it will not be reported."
Clenbuterol was confirmed in serum in confirmation testing of 13 of the Ziadie II samples, taken after races from March 13, 2013, through October 27, 2013, ranging in concentration from 5 to 14 picograms per milliliter. These samples were also split, and an independent laboratory confirmed the presence of clenbuterol in each sample.
Testing also confirmed in serum the presence of phenylbutazone in the sample taken from the race on January 19, 2014, in Ziadie II, in the amount of 2.3 micrograms per milliliter, plus or minus .3 micrograms.
The Division did not give notification to the horsemen of any changes in the testing level at which the laboratory would report that a sample had tested positive for clenbuterol. Ms. Blackman testified that clenbuterol is not permitted at any level on race day, and it is the trainers' responsibility, in conjunction with their veterinarians, to decide whether to administer a particular medication at all. She testified that she did not think it was in the best interest of the horses or
the Division to make announcements every time they are able to detect a new drug or an existing drug at a lower level.
In contrast, she noted, when the amount of phenylbutazone permitted in a horse on race day was lowered from
mg to 2 mg, this was announced to the horsemen through the public rulemaking process. An advance notice of about six months allowed trainers to work out adjustments with veterinarians so there would not be a huge number of phenylbutazone positives when the new rule became effective. Since phenylbutazone is a "threshold" drug permitted on race day at no greater than prescribed amounts, Ms. Blackman testified that it was reasonable to give horsemen notice of this change.
Dr. Cole testified that she had a different view about changes to testing levels of drugs such as clenbuterol that were completely prohibited on race day when she was the director of the lab, saying she believed it was "prudent and fair" to notify the horsemen of changes in advance:
Often when we're changing levels or sensitivity for medication type—drugs that have legitimate use in a horse, we would try to have a conversation with the horsemen to let them know that change was coming so that they could comply. Generally it's going to be an increase in the withdrawal time that they're going to be needed.
On March 20, 2013, Mr. Stirling sent an e-mail to Ms. Blackman stating that he was beginning to get low-level
positives for clenbuterol again, giving an example of
picograms per milliliter. He stated he thought the testing medium had been changed back to blood to return to a five-day withdrawal time and asked how the Division planned to handle the low-level clenbuterols from December. In e-mail correspondence continuing through April and May of 2013, Mr. Stirling continued to question the Division about the withdrawal time and to urge a
25 picogram per milliliter testing level. Ms. Blackman advised that the laboratory was re-confirming in serum the clenbuterol positives that had been confirmed in urine. She noted that a 10 picogram per milliliter reporting point for testing in serum had been established prior to the change in the medium for confirmation and noted there was no "threshold" for clenbuterol in Florida. On May 24, 2013, Ms. Blackman advised Mr. Stirling that clenbuterol positives confirmed in serum at 5 picograms per milliliter or a greater concentration would be prosecuted.
On or about May 29, 2013, Mr. Stirling issued a memorandum to Florida horsemen advising that the Division was continuing to call clenbuterol positives at levels detected below 25 picograms per milliliter and suggesting that they should no longer rely on a five-day withdrawal time. The memorandum suggested that a 14-day withdrawal time "should be more than safe" for avoiding a clenbuterol positive.
Mr. Ziadie admitted he did not change his practice of utilizing a five-day withdrawal time in response:
I was still stuck on the five days, your honor. I was stubborn. I know I did wrong. I know that there was a rumor and I know there was a brochure going around 14 days. but I was trying to do the best for my horses. I thought that it was the medication that they needed at the time when we were racing and I take blame for being stubborn and making a mistake, but I did keep it at 5 days.
SOP DCN: R1.07.04.05.11-06, entitled "Extraction of Clenbuterol from Horse or Dog Urine and Identification by Liquid Chromatography-Tandem Mass Spectrometry," effective October 9, 2014, established the low end of the calibration curve at 50 picograms per milliliter and the high end of the calibration curve at 2000 picograms per milliliter. The amount set for both positive controls was 140 picograms per milliliter. The SOP provided:
Report the calculated concentration of clenbuterol in the suspect sample as the average of its duplicates if its calculated value lies within the range of the calibration curve. If the calculated concentration of clenbuterol in the test sample is outside the range of the calibration curve, it will be reported as either greater than, or less than the limits of the calibration curve.
Based on the serum test results, the Second Amended Complaint in Ziadie I was served on Mr. Ziadie on or about September 8, 2014.
The First Amended Complaint in Ziadie II was served on Mr. Ziadie on or about March 16, 2015.
Other trainers whose horses tested positive for clenbuterol did not have administrative complaints filed against them. The Division, instead, settled their cases with fines. Almost all of these trainers had few prior violations, however. There was credible testimony that the Division had offered to settle charges against one other trainer who had numerous prior violations with the imposition of fines and a short suspension, but there was no evidence that a settlement had been reached.
It was also noted at hearing that this trainer's recent violations were in close proximity, which suggested that he might not have been informed of the violations in one case before the samples were taken in the next. The Division noted that this could be a mitigating factor, because a trainer would not reasonably have had an opportunity to adjust his medication levels in response to the earlier violations.
Ms. Wilding testified that, in early 2015, she was asked by the Division to re-confirm the 2012 positive serum confirmations from Ziadie I using the urine samples taken immediately after those races. The urine samples had been used for initial screening in 2012, but had not been used for confirmation at that time. The urine samples had been stored in
a minus 30-degree freezer since the initial screening in 2012 had determined them suspicious for clenbuterol.
On March 18, 2015, Ms. Wilding sent an e-mail to her immediate subordinates, the supervisors of the laboratory's four main divisions, advising that "PMW Legal is asking us to analyze the five urine samples in the first Ziadie case for clenbuterol." Her e-mail listed the sample numbers for the five urine samples and directed that they be rescreened for clenbuterol and then tested for confirmation.
The 2012 urine samples were rescreened for clenbuterol in 2015, and, as Ms. Wilding testified, the results were in "good agreement" with the screening results from 2012. This indicated that the presence of clenbuterol remained relatively stable over that period of time.
Although the laboratory supervisors knew the trainer associated with the samples, as Ms. Wilding and Mr. Russell testified, samples tested in the laboratory do not contain identification of the horse or trainer and are only marked with a "LIMS" number internal to the lab. The technicians who actually performed these tests were not informed of the name of the horse or trainer involved.
Clenbuterol was confirmed in the urine in the 2015 tests in each of the five samples from Ziadie I, ranging in concentration from 1.8 nanograms per milliliter to 1.3 nanograms
per milliliter. The samples were also split, and an independent laboratory confirmed the presence of clenbuterol in each urine sample. There was no significant degradation of the urine samples over the three-year period. The results were scientifically sound.
In early May 2015, again at the Division's request, the laboratory began confirmation testing for clenbuterol in urine samples from the Ziadie II races. These urine samples were not rescreened because, as Ms. Wilding had earlier determined from the Ziadie I urine samples, the stability of clenbuterol in urine stored in a minus 30-degree freezer for several years was "excellent." The senior staff members were again likely told about the identity of the trainer. Again, samples tested in the laboratory do not contain identification of the horse or trainer and are only marked with a "LIMS" number internal to the lab. The technicians who actually performed the confirmation testing were not informed of the name of the horse or trainer involved. The samples confirmed positive for clenbuterol at concentrations, in picograms per milliliter, of 973, 551, 390, 212, 718, 450, 236, 740, 698, 225, 435, 197, and 435, all amounts with a measurement of uncertainty at plus or minus 30 picograms. Again, these results were scientifically sound.
The serum specimens were routinely collected without the owners' representatives witnessing the sealing of the specimens and were not collected pursuant to the requirements of chapter 61D-6. The systematic and regular violation of this important requirement constituted a significant procedural error that affected the fairness of the blood sampling procedure.
Subsection 4.6 of the Manual is an unadopted rule.
The only evidence of the presence of phenylbutazone in any of Mr. Ziadie's horses was from serum obtained pursuant to the unadopted procedures of subsection 4.6 of the Manual and in a manner contrary to the Division's own rule. The Division failed to prove that Mr. Ziadie's horses carried a prohibited level of phenylbutazone in their bodies on race day.
The urine test results proved that Mr. Ziadie's horses in these consolidated cases had clenbuterol in their bodies on race day.
Mr. Lawson testified that as a licensed horse owner in the United States, South Africa, and Jamaica, he has had an opportunity to observe the different ways that trainers care for their thoroughbred horses. He testified that Mr. Ziadie's stalls were always clean, the handling of the feed was always done in a very systemized and structured way, and the best feed available was used, even though it had to be imported and was much more expensive.
He testified that Mr. Ziadie's horses were always well groomed, they always looked very healthy, their coats were very shiny, their feet were carefully inspected, and they were happy horses. He testified that Mr. Ziadie looked after the specific needs of each horse, rather than treating them all the same, and spent a lot of time personally inspecting them. He noted that Mr. Ziadie didn't race his horses as often as other trainers.
Mr. Lawson's testimony was bolstered by the stipulated testimony of Dr. Al Smollen, a veterinarian for the tracks, and the testimony about the excellent condition of Mr. Ziadie's horses, the cleanliness of their surroundings, the quality of the feed, and the care given to the horses is credited.
The Division presented clear evidence that Mr. Ziadie has had 14 prior violations of section 550.2415, Florida Statutes. The Division case number, date of offense, name of restricted drug, classification, and disposition are as follows:
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding pursuant to sections 120.569 and 120.57(1), Florida Statutes (2015).
The substantial interests of Respondent are being determined by Petitioner, and Respondent has standing in this proceeding.
A proceeding to suspend, revoke, or impose other discipline upon a license is penal in nature. State ex rel. Vining v. Fla. Real Estate Comm'n, 281 So. 2d 487, 491 (Fla.
1973). Petitioner must therefore prove the charges against Respondent by clear and convincing evidence. Fox v. Dep't of
Health, 994 So. 2d 416, 418 (Fla. 1st DCA 2008)(citing Dep't of
Banking & Fin. v. Osborne Stern & Co., 670 So. 2d 932 (Fla.
1996)).
The clear and convincing standard of proof has been described by the Florida Supreme Court:
Clear 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 testimony 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 a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.
In re Davey, 645 So. 2d 398, 404 (Fla. 1994)(quoting Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983)).
Section 550.2415(1)(a) provided in part:
The racing of any animal with any drug, medication, stimulant, depressant, hypnotic, local anesthetic, or drug-masking agent is prohibited. It is a violation of this section for any 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 racing animal immediately prior to or immediately after the racing of the animal.
Section 550.2415(1)(c), providing that the finding of a prohibited substance in a race day sample is prima facie evidence of a violation, does not distinguish between blood or urine specimens.
Section 550.0251(3) required Petitioner to adopt reasonable rules for the control, supervision, and direction of all applicants, permittees, and licensees, and for the holding, conducting, and operating of all racetracks, race meets, and races held in this state.
The statute also provided that, when a race horse has been impermissibly medicated or drugged, action may be taken "against an occupational licensee responsible pursuant to rule of the division" for the horse's condition. § 550.2415(2), Fla. Stat.
Consistent with the above statutes, Petitioner adopted rule 61D-6.002, the "absolute insurer rule," making trainers strictly responsible.
Petitioner was specifically directed by section 550.2415(7)(c) to adopt rules setting conditions for the use of phenylbutazone. The statute went on to expressly prohibit its administration within 24 hours prior to the officially scheduled post time of a race.
Petitioner adopted rule 61D-6.008(2)(a)2., which provided in part that, "[p]henylbutzone may be administered to a horse providing . . . the post-race serum sample of such horse contains a concentration less than 2 micrograms (mcg) of Phenylbutazone or its metabolites per milliliter (ml) of serum."
Change of Testing Levels
Respondent argues that Petitioner changed a de facto testing level set for clenbuterol and subsequently unfairly charged Respondent with violations based upon the presence of small amounts of clenbuterol that previously would not have been considered "positives."
The evidence showed that testing protocols have been periodically adjusted to establish the minimum amount of a drug that will be reported as positive. While legal authority for a testing level was not clear, the evidence did convincingly show that, as a practical matter, there was in fact a testing level in place, below which a "positive" for clenbuterol was not reported, and that this level changed. However, as Petitioner argued, it was equally clear that no amount of clenbuterol was permitted in a horse on race day. The evidence regarding testing levels did not provide a legal defense to the counts charged.
Chain-of-Custody
Respondent argues that Petitioner failed to show that the serum samples that were tested came from Respondent's horses because the chain-of-custody from the whole blood samples was broken. However, the testimony regarding the procedures that were followed in taking blood samples, centrifuging them, and pouring the extracted serum from the numbered blood collection
tubes into the correspondingly numbered specimen container was clear and convincing, and showed continuity and control of the samples. While Dr. Barker testified that contamination or tampering was possible, he never concluded that either of these things was likely or probable. The mere possibility of tampering or contamination is not sufficient to require proof of a strict chain-of-custody, there must be a probability. Hildwin
v. State, 141 So. 3d 1178, 1187 (Fla. 2014); Armstrong v. State,
73 So. 3d 155, 171 (Fla. 2011); Murray v. State, 838 So. 2d
1073, 1082-83 (Fla. 2002).
Selective Prosecution
Respondent argues that Petitioner has not settled the charges against him through the payment of small fines, as it has done with other trainers, but instead has sought to revoke his license. He argues that this constitutes selective and discriminatory prosecution because Petitioner was motivated to take action against him following a news article published on August 9, 2012, that referred to Respondent and cast Petitioner in an unfavorable light.
"Selective prosecution," in violation of principles of equal protection, would require a finding not only that Respondent was "singled out" for different and less favorable treatment by Petitioner, but also that this action was based on some unjustified standard such as race, religion, or other
arbitrary classification. State v. A.R.S., 684 So. 2d 1383,
1384 (Fla. 1st DCA 1996). Even had it been shown, which it was not, that Petitioner's action was prompted by the newspaper article, Respondent did not put on persuasive evidence that he was treated differently than other similarly-situated trainers. Almost all trainers who received fines had few prior violations, unlike Respondent. There was credible testimony that Petitioner had offered to settle charges against one other trainer who had numerous prior violations with the imposition of fines and a short suspension, but there was no evidence that any settlement had been reached. Further, differences were pointed out as to the close proximity of the violations in that case, which has sometimes been considered a mitigating circumstance. Respondent failed to show that the treatment of any other trainer was inconsistent with Petitioner's broad authority to prosecute or settle cases or that Petitioner's failure to come to any particular agreement with Respondent was predicated upon discriminatory animus.
Violation of Rule 61D-6.005
Respondent maintains that Petitioner did not follow the procedures set forth in chapter 61D-6 for collecting, sealing, and testing the blood samples, as required by rule 61D- 6.005(8). Any suggestion that the taking of the blood sample in a partial vacuum tube constituted the "sealing" of the specimen
required by the rule has been rejected. The rule refers to the sealing of the specimen in its container, which has the "blood label" affixed. The evidence clearly showed that the sampling procedures followed here, as set forth in the Manual, had the witness sign the card after the sealing of the urine specimen, but before the sealing of the serum specimen.
A procedural error in agency action is not necessarily fatal to agency action unless the "fairness of the proceedings or the correctness of the action" may have been impaired. § 120.68(7)(c), Fla. Stat. (2015). Cases consider errors made before, as well as during, quasi-judicial proceedings. Putnam Cnty. Envtl. Council v. St. Johns River
Water Mgmt. Dist., 136 So. 3d 766, 768 (Fla. 1st DCA 2014)(action by secretary rather than the Florida Land and Water Adjudicatory Commission in determining whether a request for review met statutory jurisdictional grounds affected the correctness of the action and so was not harmless error); Matar
v. Fla. Int'l Univ., 944 So. 2d 1153, 1158 (Fla. 3d DCA 2006)(university's failure to strictly comply with its rule requiring that student be given a specific waiver form was harmless error where university substantially complied by advising the student of his rights).
It is beyond question that Petitioner must exercise broad powers to regulate and control the unique challenges of
legalized pari-mutuel racing activities. The courts have long and consistently held that Petitioner has authority to adopt necessary rules, including the "absolute insurer" rule, 61D-
6.002:
The trainer of record shall be responsible for and be the absolute insurer of the condition of the horses or racing greyhounds, he/she enters to race.
Trainers, kennel owners and operators are presumed to know the rules of the division.
Hennessey v. Dep't of Bus. & Prof'l Reg., 818 So. 2d 697 (Fla.
1st DCA 2002); Solimena v. State, 402 So. 2d 1240 (Fla. 3d DCA 1981); State ex rel. Mason v. Rose, 122 Fla. 413 So. 347 (1936).
However, attendant with the broad power to adopt rules heavily regulating races and imposing such strict accountability is the necessary obligation on Petitioner to precisely and fairly abide by those same rules.
Petitioner's argument that it cannot "force" the authorized representative to witness the sealing of the specimen is unpersuasive. The rule clearly states that "the sample tag shall be detached and signed by the owner, trainer, groom, or the authorized person as a witness to the taking and sealing of the specimen." A witness's refusal to do so would be one thing, but here the procedure routinely followed--as established in great detail by the Manual--secures the signature of the witness long before the serum is even extracted.
Rule 61D-6.005(8) provided:
The division may proceed when other evidence exists that an illegal or impermissible legend or proprietary drug, medication, or medicinal compound (natural or synthetic) may have been administered to a racing animal. Otherwise, no action shall be taken unless and until the laboratory under contract with the division has properly identified the legend or proprietary drug, medication, or medicinal compound (natural or synthetic) in a sample or specimen collected pursuant to this chapter.
The blood samples were not collected pursuant to the requirements of chapter 61D-6. Under all of the circumstances of these cases, it is not difficult to conclude that the systematic and regular violation of the rule's requirement that the authorized representative witness the sealing of the serum sample constituted a significant procedural error that affected the fairness of the proceeding.
With respect to the blood samples, Petitioner failed to identify restricted drugs in specimens collected in the manner required by its rules.
Unadopted Rule
Respondent contends that the results of the laboratory tests may not be used as the basis for discipline of his license because they were obtained pursuant to the Manual procedures, and the Manual is an unadopted rule.4/
Section 120.52(20) provides that an unadopted rule is an agency statement that meets the definition of the term "rule," but that has not been adopted pursuant to the requirements of section 120.54.
Section 120.52(16), in relevant part, defines the term "rule" as follows:
"Rule" means each agency statement of general applicability that implements, interprets, or prescribes law or policy or describes the procedure or practice requirements of an agency and includes any form which imposes any requirement or solicits any information not specifically required by statute or by an existing rule.
The courts have considered several elements of this statutory definition in determining whether a statement constitutes an unadopted rule. Perhaps the most fundamental element is that it must be an "agency" statement, that is, an expression of policy by the agency. First, it must be a statement of the agency as an institution, not merely the position of a single employee. It must be properly attributable to the agency head or some duly-authorized delegate. Dep't of High. Saf. & Motor Veh. v. Schluter, 705 So. 2d 81, 87 (Fla. 1st
DCA 1997)(Benton, J., concurring and dissenting). Second, to be a statement attributable to the agency, it must go beyond the mere reiteration or restatement of policy already established by a properly adopted rule or by the implemented statute.
St. Francis Hosp., Inc. v. Dep't of HRS, 553 So. 2d 1351
(Fla. 1st DCA 1989).
While rare, courts have recognized that de facto policy established by procedures may constitute an unadopted rule. See Dep't of Bus. & Prof'l Reg. v. Harden, 10 So. 3d 647,
649 (Fla. 1st DCA 2009)(committee procedure by which license applications were reviewed was unadopted rule); Dep't of Rev. v.
Vanjaria Enters., Inc., 675 So. 2d 252, 254 (Fla. 5th DCA 1996)
(assessment procedure to determine tax exemption contained in training manual was unadopted rule).
While subsections 4.3 through 4.5 of the Manual5/ provide detail on collecting the urine specimen, filling out the required forms, and sealing the container in the presence of the witness, this detail is essentially technical or administrative in nature. The general policy of taking blood and urine samples for testing to determine possible violations of section 550.2415, as well as the witnessing requirement, is established by the statute or by properly adopted rules. As these Manual subsections simply provide minor administrative details necessary to execute policy already established elsewhere, it was not shown that these subsections were "agency statements" so as to constitute unadopted rules.
However, the same cannot be said with respect to subsection 4.6, with regard to collection and sealing of the
blood sample. As noted earlier, the rule explicitly requires that the owner's representative witness the sealing of both samples, and says nothing of procedures to extract serum from the blood. Because the witnessing of the sealing of the serum sample is not merely a matter of technical implementation, the Manual's restructuring of this important rule requirement constitutes an important policy change that does constitute an "agency statement."
The requirement that a statement be generally applicable involves the field of operation of the statement. Dep't of Com. v. Matthews Corp., 358 So. 2d 256 (Fla. 1st DCA 1978)(wage rates applicable to public works contracts held not to be rules because they applied only to the construction of a particular public building and did not establish wages elsewhere in the state into the future). The Manual applies to every state-licensed horseracing facility in the state of Florida.
The concept of general applicability also involves the force and effect of the statement itself. An agency statement that requires compliance, creates or adversely affects rights, or otherwise has the direct and consistent effect of law is a rule. State Bd. of Admin. v. Huberty, 46 So. 3d 1144, 1147
(Fla. 1st DCA 2010). Subsection 4.6 of the Manual directly affects the rights of a trainer charged with racing thoroughbred horses that are impermissibly medicated or drugged, especially
given that the statutory presumption, in conjunction with the "absolute insurer" rule, instills the test results with such a significant, virtually determinative, effect. Subsection 4.6 of the Manual directly affects rights and has the effect of law.
An agency statement must also be consistently applicable. In Schluter, supra at 81, 82, the court found three of the challenged policies not to be generally applicable because an employee's supervisor was not required to apply them, and therefore they could not be considered to have the "consistent effect of law." See also Coventry First, LLC v.
Off. of Ins. Reg., 38 So. 3d 200, 205 (Fla. 1st DCA 2010) (examination manual provided to examiners of the Office of Insurance Regulation not generally applicable because examiners had discretion not to follow it). The Manual by its own terms requires compliance by Petitioner's employees. The procedures set out in the Manual are generally applicable.
The Manual has not been adopted under the rulemaking process set forth in section 120.54.
Subsection 4.6 of the Manual is an agency statement of general applicability that describes the procedure requirements of Petitioner and constitutes an unadopted rule.
Section 120.57(1)(e)1., Florida Statutes (2015), provides:
An agency or an administrative law judge may not base agency action that determines the substantial interests of a party on an unadopted rule. The administrative law judge shall determine whether an agency statement constitutes an unadopted rule.
This subparagraph does not preclude application of adopted rules and applicable provisions of law to the facts.
In Vanjaria Enterprises, supra, at 252, the Department of Revenue assessed tax based on a square footage comparison pursuant to a procedure set forth in its sales and use tax training manual. The court rejected the Department of Revenue's argument that the audit calculation formula merely represented a direct application of the statute and concluded that the training manual constituted an unadopted rule, stating at page 255:
Furthermore, the tax assessment procedure creates DOR's entitlement to taxes while adversely affecting property owners. The Training Manual was created to be used as the sole guide for auditors in their assessment of multiple-use properties. In determining exempt versus nonexempt uses of multiple-use properties, DOR's auditors strictly comply with the procedure set forth in the Training Manual for all audits performed. Moreover, DOR auditors are not afforded any discretion to take action outside the scope of the Training Manual.
Finding the tax assessment procedure to be an unadopted rule, the court affirmed the decision below that the training manual procedure was void and could not be applied to increase appellee's tax liability.
The public in general, and trainers in particular, in light of their "absolute liability," have a right to be fully advised of all of the basic procedures that are to be followed, and through the rulemaking process, even participate in their formulation. Given the critical procedures involved, it is remarkable that Petitioner has not incorporated the Manual by reference into its governing rule. Discipline of Respondent's license may not be based upon test results of serum obtained pursuant to the unadopted procedures of subsection 4.6 of the Manual and contrary to Petitioner's adopted rule.
Anonymity Rule
Petitioner did not rely solely on the results of the serum tests, however. It also presented evidence of test results from urine samples taken from the horses on race day.
While initially Respondent challenged the scientific validity of the 2015 re-testing of the 2012 urine samples, he abandoned that claim in his proposed recommended order. In any event, while Ms. Wilding testified that multiple "freeze and thaw cycles" may cause degradation of samples, the evidence clearly showed that there was no significant degradation of the urine samples here resulting from the passage of time. The results from the urine confirmations were scientifically sound.
Respondent argues that the urine test results may not be used because Petitioner violated the "anonymity requirement" set forth in rule 61D-6.005(6):
All specimens taken by or under direction of the division veterinarian or other authorized representative of the division shall be delivered to the laboratory under contract with the division for official analysis. Each specimen shall be marked by number and date and also bear any information essential for its proper analysis; however, the identity of the racing animal from which the specimen was taken or the identity of its owner, trainer, jockey, stable, or kennel shall not be revealed to the laboratory staff until official analysis of the specimen is complete.
The evidence showed that when the initial urine and serum samples were sent to the laboratory in 2012 and 2013, the usual procedures were followed and anonymity was preserved. Respondent argues that when confirmation in urine was requested by Petitioner in 2015, however, the rule was violated.
It is undisputed that Ms. Wilding and her immediate subordinates, the supervisors of the laboratory's four main divisions, were aware that five urine samples from the Ziadie I case were to be re-screened for clenbuterol and then tested for confirmation. It was not a "blind sample" test, as is called for by the rule. While some adjustments, such as the selection of tests able to detect clenbuterol for re-screening and confirmation, were required, it was not shown that this
re-testing could not have been done in a way that did not reveal the horse or trainer involved. Petitioner's argument that, if anonymity was preserved in 2012 and 2013, when the specimens were originally tested, it was no longer required in 2015, is rejected as contrary to the spirit of the rule.
However, Ms. Wilding and Mr. Russell testified that when the laboratory is processing samples, they are marked only with an internal laboratory number, not the name of the horse or trainer. The laboratory technicians who actually performed the tests were not told the name of the horse or trainer. The purpose of the rule--to avoid the identity of the trainer from affecting test results--was not compromised.
The fact that the 2015 urine results confirmed the 2012 screening results for these same samples, which were conducted with complete anonymity, also provides support for the conclusion that the test results were valid and not fabricated based upon knowledge of the trainer. There was excellent agreement of the concentration of clenbuterol in the two different screenings, showing that the presence of clenbuterol in the samples remained relatively stable. The results were also subsequently confirmed by an outside laboratory.
Allowing the identity of the trainer to be known by the top echelon of laboratory personnel was a violation of the rule, but it did not affect the fairness of the proceedings or
the correctness of the results. Under all of the circumstances, this failure to strictly follow the rule was harmless error.
Although Petitioner is unable to rely on the blood serum test results derived from procedures that were not adopted by rule, Petitioner had independent evidence that the horses had clenbuterol in their bodies on their respective race days, in the form of the test results from these urine samples.6/
Petitioner proved by clear and convincing evidence that Respondent violated section 550.2415(1)(a), on five occasions from July 4 to September 27, 2012, as alleged in the Second Amended Administrative Complaint in Ziadie I.
Petitioner proved by clear and convincing evidence that Respondent violated section 550.2415(1)(a), on 13 occasions from March 13 to October 27, 2013, as alleged in the First Amended Administrative Complaint in Ziadie II.
Petitioner's only evidence of the presence of phenylbutazone in any of Respondent's horses was from serum obtained pursuant to the unadopted procedures of subsection 4.6 of the Manual and contrary to Petitioner's rule. Provisions of chapters 120 and 550 prohibit its use. Petitioner failed to prove the presence of phenylbutazone as alleged in Ziadie I or Ziadie II by clear and convincing evidence.
Penalty
Florida Administrative Code Rule 61D-6.011(2)(c) provides that for a Class III impermissible substance under the incorporated Uniform Classification Guidelines for Foreign Substances, the penalty schedule shall be:
First violation--$300 to $500 fine;
Second violation within 12 months of a previous violation--$500 to $750 fine and suspension of license up to 30 days, or revocation of license;
Third violation within 24 months of a second violation, or a fourth or any subsequent violation without regard to the time past (sic) since the third violation--$750 to
$1,000 fine and suspension of license up to
180 days, or revocation of license.
Rule 61D-2.021, entitled Aggravating and Mitigating Circumstances, provides:
Circumstances which may be considered for the purposes of mitigation or aggravation of any penalty shall include, but are not limited to, the following:
The impact of the offense to the integrity of the pari-mutuel industry.
The danger to the public and/or racing animals.
The number of repetitions of offenses.
The number of complaints filed against the licensee or permitholder, which have resulted in prior discipline.
The length of time the licensee or permitholder has practiced.
The deterrent effect of the penalty imposed.
Any efforts at rehabilitation.
Any other mitigating or aggravating circumstances.
The number of repetitions of offenses was significant and indicates a pattern or practice rather than an occasional oversight. Repeated drug offenses have a direct impact on the integrity of the pari-mutuel industry. Clenbuterol, while a drug with therapeutic value, also has adverse effects, and excessive use presents a danger to racing thoroughbreds.
Evidence of 14 prior complaints resulting in discipline was also introduced, another aggravating factor.
On the other hand, Respondent has been involved with racing his entire life and has been a trainer for a substantial number of years. It was uncontroverted that his horses were in excellent condition and that he provided them with clean surroundings, quality feed, and excellent care.
Another significant mitigating factor arises from the two changes in the level at which the laboratory reported the presence of clenbuterol identified in a serum specimen, made without notice to the horsemen. Petitioner's position that there is no legal threshold in Florida for clenbuterol on race day, and that Petitioner has no authority to set withdrawal times, is accepted. As noted above, Respondent's argument that
Petitioner's failure to publicize the change in reporting level was rejected as a defense to the charges. However, Petitioner must realistically acknowledge that, in practice, the level at which clenbuterol positives are declared establishes a de facto "threshold." Clenbuterol is a legal drug with therapeutic value, and the fact that veterinarians and trainers trying to follow the rules in good faith could suddenly be found in violation following an unannounced change in the level at which positive test results are reported is a substantial mitigating factor. Petitioner can set the testing level as low as can be scientifically justified, but as both Dr. Cole and Dr. Barker testified, it would be prudent and fair to notify horsemen of changes in the testing level as long as the drug concerned has therapeutic value and is only prohibited on race day.
While Respondent's violations are predicated upon the subsequent confirmations in urine, had the change in serum reporting level been announced to the horsemen, there may well have been no confirmation in serum for any of the horses in Ziadie I, or for the first five races in Ziadie II; so, no urine testing would have even been ordered. On the other hand, Respondent was fully on notice beginning May 29, 2013, that the testing level had been changed and that Mr. Stirling had recommended a 14-day withdrawal time for at least the six races occurring from June 25 through October 27, 2013. No mitigation
for the testing level change is appropriate as to these
violations.
RECOMMENDATION
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED:
That the Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering, enter a final order finding Mr. Kirk M. Ziadie guilty of 18 counts of violating section 550.2415(1)(a), Florida Statutes, and Florida Administrative Code Rule 61D-6.002(1); imposing an administrative fine of $18,000; and suspending his license for six years.
DONE AND ENTERED this 15th day of December, 2015, in Tallahassee, Leon County, Florida.
S
F. SCOTT BOYD Administrative Law Judge
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(850) 488-9675
Fax Filing (850) 921-6847 www.doah.state.fl.us
Filed with the Clerk of the Division of Administrative Hearings this 15th day of December, 2015.
ENDNOTES
1/ Except as otherwise indicated, statutory references in this Recommended Order are to the 2012 Florida Statutes, which text remained unchanged throughout the time the alleged violations occurred.
2/ Except as otherwise indicated, references to Florida Administrative Code rules are to those in effect at the time the alleged violations occurred, from July 4, 2012, until December 7, 2014.
3/ Rule 61D-6.005 was amended effective June 15, 2015. The amended rule is not applicable to this proceeding.
4/ No petition under section 120.56(4) was filed, and the arguments in Petitioner's Proposed Recommended Order appropriate to such a rule challenge proceeding are instead considered under section 120.57(1)(e), to the extent applicable.
5/ It is not entirely clear from Respondent's proposed recommended order whether he contends that the Manual provisions relating to urine collection and sealing constitute an unadopted rule. In several places, he refers only to the blood sampling procedures. In one place, however, he refers to the urine procedures; so, this contention is addressed briefly.
6/ Section 550.2415(16) provides that the testing medium for phenylbutazone in horses shall be serum; so, Petitioner failed to prove that testing revealed an overage of that drug as charged in the administrative complaints.
COPIES FURNISHED:
Richard McNelis, Esquire Caitlin R. Mawn, Esquire Department of Business and
Professional Regulation Division of Pari-Mutuel Wagering
1940 North Monroe Street, Suite 40
Tallahassee, Florida 32399 (eServed)
Bradford J. Beilly, Esquire John Daniel Strohsahl, Esquire Bradford and Strohsahl, P.A.
1144 Southeast Third Avenue Fort Lauderdale, Florida 33316 (eServed)
William D. Hall, Esquire Department of Business and
Professional Regulation
1940 North Monroe Street, Suite 40
Tallahassee, Florida 32399 (eServed)
Jonathan Zachem, Director Division of Pari-Mutuel Wagering Department of Business and
Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399 (eServed)
William N. Spicola, General Counsel Department of Business and
Professional Regulation Northwood Centre
1940 North Monroe Street Tallahassee, Florida 32399 (eServed)
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions within
15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.
| Issue Date | Document | Summary |
|---|---|---|
| Jan. 11, 2016 | Agency Final Order | |
| Jan. 11, 2016 | Agency Final Order | |
| Dec. 15, 2015 | Recommended Order | Petitioner's failure to follow its rule and its reliance upon an unadopted rule precluded a finding of violation on some counts, but Petitioner proved 18 counts of racing a horse with a drug which merited a fine of $18,000 and suspension for six years. |
