STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RUSSELL MICHAEL, JR., )

)

Petitioner, )

)

v. ) CASE NO. 83-1901

)

DEPARTMENT OF BUSINESS )

REGULATION, DIVISION OF )

PARI-MUTUEL WAGERING, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James F. Bradwell, held a public hearing in this case on April 5, 1984 in Miami, Florida. By Order dated July 19, 1984, the parties were afforded leave through July 27, 1984, to submit proposed orders and memoranda to the undersigned for consideration in preparation of this Recommended Order. The parties, through their counsel, submitted proposed recommended orders and Respondent's counsel has also submitted a proposed memorandum of fact and law for consideration. Said proposed memorandum has been considered by me in preparation of this Recommended Order. To the extent that the parties' proposed recommendations, conclusions, etc. are not incorporated in this Recommended Order, said proposed findings and conclusions, etc. were deemed either irrelevant, immaterial or not otherwise supported by record evidence. 1/

APPEARANCES

For Petitioner: Richard L. Kovelant, Esquire and

Allen J. Kruger, Esquire

Goldman, Nichols, Kovelant, Pedersen & Hurtt, Attorneys & Counselors at Law

Post Office Box X Laurel, Maryland 20810

For Respondent: Elliot H. Henslovitz, Esquire

Department of Business Regulation Division of Pari-Mutuel Wagering 1350 Northwest 12 Avenue, Room 332

Miami, Florida 33136 ISSUE

The issue presented herein is whether or not the Petitioner, Russell Michael, Jr., as owner of a race horse, should he required to return a purse based upon a claim that he raced a horse with an excessive amount of a permitted drug in its system in violation of Rule 7E-1.0611, Florida Administrative Cede. 2/

BACKGROUND

By ruling dated March 12, 1983, the Stewards of Hialeah Park ordered that the first place purse of the seventh race on February 23, 1983, at Gulf Stream Park, won by the horse "Rock Steady," be returned for redistribution in accordance with Rule 7E-1.06(13), Florida Administrative Code. Said ruling was based upon a finding by the Division of Pari-Mutuel Wagering's (herein sometimes called the Division) laboratory that a post-race urine specimen taken from "Rock Steady" contained at least 182 micrograms of phenylbutazone and/or its derivatives per millileter of urine. Rule 7E-1.0612, Florida Administrative Code provides for the discretionary return of a purse when the laboratory findings are in excess of 125 micrograms per milliliter and for the mandatory return of a purse when the laboratory findings are in excess of 140 micrograms per milliliter.

By letter dated March 15, 1983, Petitioner, through his attorney, filed a Notice of Appeal with the Respondent and further requested that the matter be set for a de novo hearing.

This cause was scheduled for final hearing on April 5, 1984, by a Notice of Hearing dated March 5, 1984. At the final hearing, Respondent called Drs.

Camille McCardle, Thomas Tobin and Wayne C. Duer as witnesses. Petitioner's Exhibits 3 and 4 and Respondent's Exhibits 1, 2, 3, 4, 6, 7, 5, 9, and 10 were received into evidence. The Petitioner called Dr. Thomas Tobin as its sole witness. Dr. Duer was called as a rebuttal witness by Respondent.

FINDINGS OF FACT

1. Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, I hereby make the following relevant factual findings.

   
   

2. On February 23, 1983, the horse "Rock Steady" owned by Petitioner, Russell Michael, Jr., and trained by Ronnie Warren, ran in the seventh race at Gulf Stream Park. The horse finished first. Subsequent to the running of the aforementioned race, and in accordance with standard procedure, "Rock Steady" was led over to the state detention barn for the taking of a urine specimen. The specimen was placed in a sealed container and transported to the Division's laboratory with other specimens.

   
   

3. Upon reaching the Division's laboratory, the specimen was logged in, assigned a number and subjected to various preliminary tests. Based on those preliminary tests, further tests were made and on March 3, 1983, the Division's laboratory reported that the specimen taken from "Rock Steady" contained at least 182 micrograms of phenylbutazone and/or its derivatives per milliliter of urine. (Respondent's composite Exhibit 1)

   
   

4. "Rock Steady" was administered phenylbutazone in oral paste form at some time prior to the seventh race on February 23, 1983. (Post-hearing stipulation of the parties entered pursuant to a joint telecon on July 25, 1984)

   
   

5. On April 28, 1983, Dr. Wayne C. Duer, 3/ Chief of the Division's Bureau of Laboratory Services, sent a split sample from the urine specimen taken from "Rock Steady" to Dr. Thomas Tobin in accordance with instructions of Respondent's counsel. (Petitioner's Exhibit 8) On or about that same date, Dr. Duer sent another split sample from "Rock Steady" to Dr. George A. Maylin, Director of the New York State Racing and Wagering Board Drug Testing and

   Research Program. Dr. Tobin reported an average amount in the sample of 125.1 micrograms of phenylbutazone per milliliter of urine. Dr. Maylin reported a sum total of 154.4 micrograms of phenylbutazone per milliliter of urine. (Petitioner's Exhibit 10)

   
   

6. The methods employed by the Division laboratory, and which were utilized by Chief Duer, liquid chromatography, thin laver chromatography and ultraviolet spectrophotometry, are methods recognized as the "state of the art" for quantitating phenylbutazone in urine. Based on analysis of the specimen here in question on March 1 by Dr. Duer, an average amount of 182 micrograms of phenylbutazone per milliliter of urine was indicated. In reporting his results, Dr. Duer reported his findings by factoring in the various results and averaging to report the concentration of phenylbutazone in "Rock Steady's" urine specimen. All of the Division's analyses were conducted under Dr. Duer's direction and supervision.

   
   

7. Dr. Duer has noted a variance of approximately 3 - 4 percent when analyzing any given sample. Samples can vary based on the exposure to air for long periods of time; samples left unsealed for long periods of time; samples analyzed over various time periods; the amount of alkaline in a urine sample and the physiology of an animal - all of which may fluctuate the phenylbutazone levels in the blood plasma of a given animal. However, as noted, a specimen analyzed soon after a race is apt to be more reliable than subsequent analyses.

   
   

   THE PETITIONER'S DEFENSE

   
   

8. Petitioner takes the position that it should not be required to return the purse money because the sample analyzed is different from the sample taken from the horse owned by Petitioner, "Rock Steady"; that the testing procedures utilized by the Respondent are unreliable and the analyses show widely varying concentrations of the drug phenylbutazone and based on the varying calculations, there is no competent and substantial evidence upon which a finding or a requirement can be made herein requiring Petitioner to return the purse money for using the drug phenylbutazone.

   
   

9. Respecting Petitioner's claim that the sample analyzed was not the sample taken from the Petitioner's horse "Rock Steady" or that somehow the samples were mishandled or otherwise confused, the evidence herein reveals that Dr. Duer analyzed the urine sample taken from the horse "Rock Steady" and it remained under his custody and control until he personally apportioned the sample such that it could be analyzed by independent laboratories at Cornell University in New York and at the University of Kentucky in Lexington, Kentucky.

   
   

10. The analytical methods employed by the Respondent, under the direction of Dr. Duer, appear reliable and are generally recognized as the state of the art in analytical procedures for measuring the drug phenylbutazone. Based on the methods utilized and the fact that the urine sample was analyzed within a short period after "Rock Steady" ran in the seventh race on February 23, 1983, I find that the testing procedures and the results of the analysis were reliable.

    
    

11. Finally, as to Petitioner's claim that the methods employed by Respondent lend to varying results, all of the experts herein related that the calculations may vary from one laboratory to the next in a range of approximately 3 - 4 percent. Given that degree of variance as the range within which a given sample may vary, that degree of variance does not alter the conclusion herein by Respondent that the Petitioner's horse competed with an

    excessive amount of a permitted drug in its system in violation of Rule 7E- 1.0612, Florida Administrative Code. It is so found.

    
    

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over the subject matter of, and the parties to this proceeding. Section 120.57(1) and 550.241(3)(a), Florida Statutes.

    
    

13. The parties were duly noticed pursuant to the notice provisions of Chapter 120, Florida Statutes.

    
    

14. Section 550.241(3)(a), Florida Statutes, authorizes the Division of Pari-Mutuel Wagering to require the full or partial return of a purse upon the finding that a racing animal competed with a prohibited drug or with an excessive amount of a permitted drug in its system. Rule 7E1.0611 (now 1.0612), Florida Administrative Code. That rule provides for the discretionary return of a purse when the Division's laboratory finding is between 125 and 140 micrograms of phenylbutazone per milliliter of urine and for mandatory redistribution when the figure is above 140 micrograms of phenylbutazone per milliliter of urine. Petitioner has adopted an absolute insurer's standard in pari mutuel regulations and this standard has been held to be a reasonable exercise of the State's police power. See, for example, Hyman v. Department of Business Regulation, 431 So.2d 603 (Fla. 3rd DCA, 1983); Solimena v. Department of Business Regulation, 402 So.2d 1240 (Fla. 3rd DCA, 1981).

    
    

15. Competent and substantial evidence was offered herein to establish that on February 23, 1953, the horse "Rock Steady" owned by Russell Michael, Jr. ran in the seventh race at Gulf Stream Park, Hialeah, Florida, and did so with a concentration of 182 micrograms of phenylbutazone per milliliter of urine, as established by an analysis by the Respondent's laboratory based on results of a post-race urine specimen taken from "Rock Steady" in accordance with standard procedures. By so doing, Petitioner violated Rule 7E-1.0611 (now 1.0612), Florida Administrative Code, and mandatory redistribution of the purse is required.

    
    

16. Based on the foregoing of findings of fact and conclusions of law, it is RECOMMENDED:

That the Department of Business Regulation, Division of Pari-Mutuel Wagering, enter a Final Order ordering that Petitioner, Russell Michael, Jr., return the first place purse of the seventh race at Gulf Stream Park on February 23, 1983 for redistribution in accordance with the requirements of Rule 7E 1.0611 (now 1.0612), Florida Administrative Code.

RECOMMENDED this 10th day of October, 1984, in Tallahassee, Florida.

JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 10th day of October, 1984.

ENDNOTES

1/ The parties waived the time requirement that a recommended order be filed within thirty days following the close of the hearing.

2/ Presently codified as Rule 7E-1.0612, Florida Administrative Code.

3/ Dr. Duer was tendered and received in these proceedings as an expert in organic, physical and analytical chemistry.

COPIES FURNISHED:

Richard I. Kovelant, Esquire Allen J. Kruger, Esquire

P.O. Box X

Laurel, Maryland 20510

Elliot Henslovitz, Esquire Depar84dottment of Business Regulation Division of Pari-Mutuel Wagering

1350 NW 12 Avenue, Room 332

Miami, Florida 33136

Robert Smith Director

Division of Pari-Mutuel Wagering State Office Building

1350 NW 12 Avenue

Miami, Florida 33136

Docket for Case No: 83-001901

Orders for Case No: 83-001901