STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 79-1186

)

VAZ ROLANDO STREET, )

)

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 N.E. 12th Avenue, Miami, Florida.

APPEARANCES

For Petitioner: David M. Maloney, Esquire

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

For Respondent: Although Respondent was duly noticed of

the hearing, he did not attend.

ISSUE

The Petitioner has accused the Respondent, Vaz Rolando Street, with a violation of Rule 7E-1.06(11)(a), Florida Administrative Code which reads:

a) The ruining 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 punish- ment 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 he 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 Street is accused under facts that allege that on November 15, 1978, the horse, Turn To Chance, trained by the Respondent, did race in the sixth race at Tropical Park, Inc., finishing in the first position. Subsequent to the race, and on the same date, a urine specimen was taken from the horse, Turn To Chance, and assigned sample number S90559A and the specimen was allegedly analyzed by the Petitioner's laboratory. It is further alleged that on February 13, 1979, the Division of Pari-Mutuel Wagering laboratory reported the results of the test. That report showed that the urine sample contained Despropionyl 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 Vaz Rolando Street. At all times pertinent to the Administrative Complaint, Vaz Rolando Street was the holder of license No. K-2282 issued by the Petitioner to the Respondent, Vaz Rolando Street, to operate as a horse trainer (authorized agent) 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 agent 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 the body are Rules 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. The facts in this case show that the Respondent, Vaz Rolando Street, was operating in his capacity as horse trainer, on November 15, 1978, at Tropical Park, Inc., located in the State of Florida. On that date, a horse for which he was the trainer, namely, Turn To Chance, ran in the sixth race and finished in first place. The post time for that race was 3:21 p.m. and subsequent to the race, the horse was taken to the detention barn at 3:38 p.m. for purposes of obtaining a urine sample. This sample was assigned specimen number S09559A. Subsequently, the sample was subjected to a series of analytical tests and the tests revealed that the urine sample contained Despropionyl Fentanyl, which is classified as a derivative of Fentanyl, a narcotic. The narcotic, Fentanyl, metabolizes to become the substance, Despropionyl Fentanyl, a central nervous system stimulant in horses. The trade name of Fentanyl is Sublimaze.

4. The circumstances of the race event and the subsequent testing, show that the horse, Turn To Chance, was running under the influence of Despropionyl Fentanyl when he raced in the sixth race at Tropical Park, Inc., on November 15, 1978, and finished in first position.

   
   

5. During the course of the hearing, no testimony was given concerning the Respondent, knowledge of the fact that his horse, Turn to Chance, was competing while under the influence of Despropionyl Fentanyl.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

7. The Notice of Hearing given to the Respondent, Vaz Rolando Street, is found to be adequate notice with the requirements of Section 120.57, Florida Statutes.

   
   

8. The running of the horse, Turn to Chance, wile he was under the influence of Despropionyl Fentanyl, a derivative of Fentanyl, a narcotic, constituted a violation of Rule 7E-1.06(11)(a), Florida Administrative Code, and the Respondent is guilty of that violation in view of the language of Rule 7E- 1.18(3), Florida Administrative Code, which makes the trainer responsible for his horse to the extent of being the insurer of the condition of the horse he enters in a race. That latter provision also creates the presumption that the trainer knows the rules of the Division.

   
   

9. By the provisions of the aforementioned rules and the authority of Div. of Pari-Mutuel Wagering, Etc. v. Caple, 362 So.2d 1350 (Fla. 1978), the Respondent is strictly liable for the condition of the horse and for the running of the horse while the horse gas under the influence of an unauthorized medication. Caple 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.12/ 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 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.

   
   

   Under this language, a violation can occur through the personal acts of the trainer, persons under his supervision or third parties unknown to him, if the rule or rules forming the basis for the violation have established with specificity reasonable precautionary duties on the part of the Respondent and if the Respondent has the competence to carry out those duties. In this case the Respondent does have the necessary competence to carry out the duties absent some intervening agency which the Respondent does not have the competence to evaluate and protect his horse and the general public against. An example of a contingency over which the Respondent is without competence to be accountable for would be the actions of a treating veterinarian.

   
   

10. In this case, no defense pertaining to such an intervening agency has been offered in the course of this hearing. Therefore, it is concluded as a matter of law that Respondent, Vaz Rolando Street, is guilty of a violation of Rule 7E-1.06(11)(a), Florida Administrative Code, as implemented by Rule 7E- 1.18(3), Florida Administrative Code, and is subject to the penalties found in Subsection 550.10(4)(b), Florida Statutes.

RECOMMENDATION

It is recommended that Respondent, Vaz Rolando Street, have his license, No. K-2282, suspended for a period of one (1) year in view of the violations established through this Notice to Show Cause.

DONE AND ENTERED this 28th day of August, 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, Richman and Greer, P.A.

One Biscayne Tower, 25th Floor Miami, Florida 33131

David M. Maloney, Esquire Staff Attorney

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

Mr. Vaz Rolando Street

261 Hibiscus Drive Apartment No. 6

Miami Springs, Florida 33166

Docket for Case No: 79-001186

Orders for Case No: 79-001186