STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 79-1182

)

FRANCIS CLIFFORD JOYCE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was held before Charles C. Adams, a Hearing Officer with the Division of Administrative Hearings. The hearing was conducted on August 14, 1979, in Room 272, State Office Building, 1350 Northwest 12th Avenue, Miami, Florida.

APPEARANCES

For Petitioner: David M. Maloney, Esquire

Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301

For Respondent: Francis Clifford Joyce

1015 South 17th Avenue Hollywood, Florida 33020

ISSUE

The Petitioner has accused Respondent, Francis Clifford Joyce, with a violation of Rule 7E-1.06(11)(a), Florida Administrative Code, which reads:

(a) The running of a horse in a race with any narcotic, stimulant, depressant

or local anesthetic is prohibited. If the stewards shall find that any narcotic, stimulant, depressant or local anesthetic has been administered or attempted to be administered, internally or externally,

to a horse before a race, such stewards/ shall impose such punishment and take such other action as they may deem proper

under any of the rules, including reference to the Division, against every person found by them to have administered, or to have attempted to administer, or to have caused to be administered, or to have caused an

attempt to administer, or to have conspired with another person to administer, such narcotic, stimulant, depressant or local anesthetic. If the Division laboratory shall find a positive identification of any such medication, such finding shall constitute prima facie evidence that such

horse raced with the medication in its system.

Under the accusation, the Respondent is made responsible pursuant to the provisions of Rule 7E-1.18(3), Florida Administrative Code, which indicates that "The trainer shall be responsible for, and be the insurer of the conditions of the horses he enters. Trainers are presumed to know the rules of the Division." Specifically, Respondent Joyce is accused under facts that allege that on December 2, 1978 the horse Sensinita, trained by the Respondent, did race in the tenth (10th) race at Tropical Park Inc., finishing in the second (2nd) position. Subsequent to the race on the same date, a urine specimen was taken from the horse, Sensinita, and assigned sample number 509910A, and that specimen was allegedly analyzed by the Petitioner's laboratory. It is further alleged that on February 20, 1979, the Division of Pari-Mutuel Wagering laboratory reported the results of the test and that report showed that the urine sample contained Despropionyl Fentanyl, which is classified as a derivative of Fentanyl, a narcotic.

FINDINGS OF FACT

1. This cause comes on for consideration based upon a Notice to Show Cause (Administrative Complaint) filed by the Petitioner, State of Florida, Department of Business Regulation, Division of Pari-Mutuel Wagering, against Francis Clifford Joyce. At all times pertinent to the Administrative Complaint, Francis Clifford Joyce was a holder of License Numbers K-4547, K-4201 and K-575 issued by the Petitioner to Respondent, Francis Clifford Joyce, to operate as a horse trainer for horses racing at the various race tracks located in the State of Florida.

   
   

2. The Petitioner, State of Florida, Department of Business Regulation, Division of Pari-Mutuel Wagering, is an agency of the State of Florida charged with the duty of the regulation of, among other things, the matters pertaining to thoroughbred horse racing in the State of Florida. The authority for such regulation is found in Chapter 550, Florida Statutes, and those rules promulgated to enforce the provisions of that chapter. Included in that body of rules are Rule 7E-1.06(11)(a) and 7E-1.18(3), Florida Administrative Code, alluded to in the issue statement of this Recommended Order. Those rules as set out in the issue statement shall serve as a basis for determining the facts and reaching the legal conclusions necessary to formulate a decision in this matter and official recognition is taken of the aforementioned rules.

   
   

3. Facts in the case reveal that the Respondent, Francis Clifford Joyce, was operating in his capacity as a trainer on December 2, 1978, at the Tropical Park, Inc. race course in Florida. On that date a horse for which he was the trainer, named Sensinita, ran in the tenth (10th) race and finished in second (2nd) place. On the date of the race and prior to the race the horse was seen and treated by a veterinarian, Carl J. Meyer, DVM. This included a treatment for a condition which Dr. Meyer described as Myopathy. In actuality, Dr. Meyer injected the horse with Sublimaze under the guise of treating the horse for Myopathy.

4. A urine sample taken from the horse shortly after the conclusion of the race and on the same data as the race was examined by a series of tests, and the urine sample revealed a positive identification of a substance known as Despropionyl Fentanyl, which is classified as a derivative of Fentanyl, a narcotic. This particular narcotic, Fentanyl, metabolizes to become Despropionyl Fentanyl, a central nervous system stimulant in horses. The trade name for Fetanyl is Sublimaze.

   
   

5. The Respondent did not know that Dr. Meyer had injected Sensinita with the substance, Sublimaze, on the date of the race. Respondent had made inquiry of Dr. Meyer concerning treatment for Myopathy in October, 1978, related to the horse, Hawaiian Gardens. At that point, Dr. Meyer indicated that treatment for Myopathy was a treatment for the horse's nervous system.

   
   

6. Subsequent to this discussion, the Respondent read an article related to allegations against other trainers who had been accused of violating the same provisions as set out in the present Notice to Show Cause, dealing with the same alleged narcotic. Among those individuals was one Frank Rudolph Solimena.

   
   

7. Shortly after finding out about the allegations related to the other trainers, Respondent approached Dr. Meyer and asked him if he had given Hawaiian Gardens the same substance which Respondent thought Dr. Meyer might have given Solimena's horses. Dr. Meyer denied giving Hawaiian Gardens Sublimaze and told the Respondent not to worry about anything.

   
   

8. The Respondent then became informed of a newspaper article claiming that the narcotic, Fentanyl/Sublimaze, had been given to his horse, Hawaiian Gardens, prior to running a race on October 16, 1978. Following this publication, a Notice to Show Cause was filed, a formal hearing was held and a Recommended Order was entered in DOAH. Case No. 79-228, now on review for final order.

   
   

9. Prior to any notification by the Petitioner or through the media that a positive sample had bean allegedly detected in the test of the urine sample of Hawaiian Gardens, Respondent ceased to use Dr. layer to treat his horses and, effective December 4, 1978, the Respondent began using a Dr. Teigland, DVM.

   
   

10. On or about February 20, 1979, Joyce received notice of the positive urine sample related to Sensinita's race which is the subject herein.

    
    

11. On June 22 or 23, 1978, following the formal hearing on the subject of the horse, Hawaiian Gardens, and its race of October 16, 1978, Joyce again spoke with Dr. Meyer about his possible use of illegal narcotics in the horses Joyce was training. Dr. Meyer laughed and responded to the effect that the Respondent would not have a problem with prosecution for horses Meyer had treated.

    
    

12. In summary, it is evident that Sensinita ran in the tenth (10th) race at Tropical Park, Inc. on December 2, 1978, at a time when the substance, Dispropionyl Fentanyl, was in its system and this had resulted from Dr. Meyer's infusion of Sublimaze. Joyce had no knowledge of Dr. Meyer's intentions on that date or the act of infusing the horse, nor did the Respondent have any reason to believe that the horse would be infused with Sublimaze.

    
    

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearing has jurisdiction over the subject matter and the parties to this action.

14. On the occasion of Sensinita's race of December 2, 1978, the horse was running under the influence of a narcotic and stimulant in violation of Rule 7E- 1.06(11)(a), Florida Administrative Code, and the Respondent is potentially guilty of a violation of that rule in view of the language of Rule 7E-1.18(3), Florida Administrative Code, which makes the trainer responsible for his horses to the extent of being the insurer of the condition of the horses he enters in a race and which creates the presumption that the trainer knows the rules of the Division. See also the Division of Pari-Mutuel, Etc. v. Caple, 362 So.2d 1350 (Fla. 1978).

    
    

15. The effect of the aforementioned rules and the Caple decision creates the condition of strict liability and the only question remaining is whether the concept should be applied in the cage, sub judice. The Caple case, supra, at pages 1354 and 1355 contains the following language in discussing the concept of strict liability:

    
    

    Whether a violation occurs as a result of the personal acts of the trainer, of persons under his supervision, or even

    of unknown third parties, the condition of licensure has been violated

    by the failure to provide adequate control, and the consequence of the default is possible suspension of the trainer's license or a fine. We

    have no doubt that a rule which both conditions a license and establishes

    with specificity reasonable precautionary duties within the competence of the licensee to perform is both reasonable and constitutional.

    
    

    12. The determination of whether and to what extent the trainer is to be penalized is discretionary with the track stewards. See note 2 above. It is possible that in exceptional cases involving acts totally beyond the trainer's control, as where there is clear evidence that protective measures have been frustrated by force, no punitive action will be taken. In

    any event, administrative and judicial review are available to protect against a totally arbitrary or discriminatory exercise of the stewards' discretion, a contention not raised by Caple in this proceeding.

    
    

    It can be seen that although the violation can occur through the personal acts of the trainer, persons under his supervision or third parties unknown to him, the rule or rules which form the basis of the violation must do so by establishing with specificity reasonable precautionary duties and those duties must be within the competence of the licensee to perform. In this instance, it is not inappropriate to require the Respondent, Francis Clifford Joyce, to be responsible for the condition of Sensinita at the time he was entered in the

    subject race on December 2, 1973, as a general proposition, but under these facts in the respondent Joyce does not have the necessary competence to second guess the acts of Dr. Meyer and Meyer's treatment rendered to the horse on December 2, 1978. Unlike the Caple situation in which the responsibility of the responsibility of the trainer, under Rule 7E-1.06(15) and (16), Florida Administrative Code, was to police his personal property, effects end premises against prohibited drugs and implements and to store acceptable drugs in a secure fashion, to accept the Petitioner's theory of the case, Joyce would be expected to vouch for the professional judgment of Dr. Meyer, something he is not competent to do.

    
    

16. Had the Respondent been placed on notice about another positive test for narcotics on the fluid sample for Sensinita, prior to the running of the race of December 2, 1978, or other suspicious events concerning narcotics, dealing with the matters and actions of Dr. Meyer or others, them Respondent should have investigated more carefully the reasons why the detection of the events had occurred, to include scrutiny of what the treating veterinarian was prescribing for Joyce's horse. Under that plan of action, treatments which did not seam appropriate should make the Respondent sufficiently suspicious to dismiss the veterinarian or he held accountable for the future improper conduct of the veterinarian. This hypothetical course of conduct following notification of a positive sample or other facts of a suspicious nature would be within the Respondent's competence to pursue end any abstinence would make him accountable for the inappropriate acts of others. However, absent other suspicious circumstances involved in Dr. Meyer's actions in treating Sensinita on December 2, 1978, there is no duty on the part of the Respondent to interrogate Dr. Meyer at the time he was administering treatment.

    
    

17. The course of conduct which the Respondent pursued once he gained notice of the allegations pertaining to the horse, Hawaiian Gardens, who had run in October, 1978, were proper responses to the hypothetical course of conduct set out in this discussion, in view of the fact that Sensinita had run prior to the time Joyce was placed on notice of the positive narcotics test related to Hawaiian Gardens.

    
    

18. In this case it is evident that Dr. Meyer injected Sensinita on December 2, 1978 with the chemical substance, Fentanyl, which was later detected as a metoholite in the urine sample of the horse in the form, Despropionyl Fentanyl. This act of injecting the horse was unknown to the Respondent and at the time the injection took place outside the Respondent's competence to detect and be held liable for. The Respondent thought that the horse was being given authorized treatment when in fact the horse was being infused with Sublimaze.

After considering all the facts herein, it is concluded as a matter of law that the Petitioner has failed to establish that Respondent is guilty of violating Rule 7E-1.06(11)(a), Florida Administrative Code, as implemented by Rule 7E-1.18(3), Florida Administrative Code.

RECOMMENDATION

It is recommended that the case against the Respondent, Francis Clifford Joyce, related to the incident of December 2, 1978, involving the horse, Sensinita, be DISMISSED

DONE and ENTERED this 5th day of September, 1979, in Tallahassee, Florida.

CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

COPIES FURNISHED:

W. S. Frates, Esquire FRATES, FLOYD, PEARSON, STEWART, RICHMAR & GREER One Biscayne Tower

25th Floor

Miami, Florida 33131

David M. Maloney, Esquire Francis Clifford Joyce Department of Business 1015 South 17th Avenue

Regulation Hollywood, Florida 33020 725 South Bronough Street

Tallahassee, Florida 32301

Docket for Case No: 79-001182

Orders for Case No: 79-001182