STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS REGULATION, ) DIVISION OF PARI-MUTUAL WAGERING, )

)

Petitioner, )

)

vs. ) CASE NO. 88-0993

) (87LF-065)

GROVER C. WHEELER, )

)

Respondent. )

) DEPARTMENT OF BUSINESS REGULATION, ) DIVISION OF PARI-MUTUAL WAGERING, )

)

Petitioner, )

)

vs. ) CASE NO. 88-1335

) (87LF-056)

GROVER C. WHEELER, )

)

Respondent. )

) DEPARTMENT OF BUSINESS REGULATION, ) DIVISION OF PARI-MUTUAL WAGERING, )

)

Petitioner, )

)

vs. ) CASE NO. 88-1336

) (87LF-058)

ROBERT L. MILLER, )

)

Respondent. )

) DEPARTMENT OF BUSINESS REGULATION, ) DIVISION OF PARI-MUTUAL WAGERING, )

)

Petitioner, )

)

vs. ) CASE NO. 88-1337

) (87LF-061)

WILLIAM W. McKIBBIN, )

)

Respondent. )

)

DEPARTMENT OF BUSINESS REGULATION, ) DIVISION OF PARI-MUTUAL WAGERING, )

)

Petitioner, )

)

vs. ) CASE NO. 88-1338

) (87LF-064)

GAYLORD HUENFELD, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William J. Kendrick, held a public hearing in the above-styled cases on April 13-14, 1988, in Miami, Florida.

APPEARANCES

For Petitioner, Department of Business Regulation:

W. Douglas Moody, Jr., Esquire Deputy General Counsel

Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007

For Respondents, Grover Wheeler and Gaylord Huenfeld: Norman Rose, Esquire

Radice Corporate Center

800 Corporate Drive, Suite 224 Fort Lauderdale, Florida 33334

For Respondent, William W. McKibbin:

William W. McKibbin, pro se 4603 Northwest 6th Street Gainesville, Florida 32609

For Respondent, Robert L. Miller:

Robert L. Miller, pro se Post Office Box 3611

Plant City, Florida 34289 PRELIMINARY STATEMENT

By administrative complaint or notice to show cause, petitioner, Department of Business Regulation, Division of Pari- Mutual Wagering (Department), charged respondents with violating the provisions of Section 550.241, Florida Statutes, and the rules of the Department. Specifically, the Department charged that respondent, Grover C. Wheeler (Wheeler), a licensed owner and trainer, participated as a quarterhorse trainer at Pompano Park on May 13-15, 1987, and during such time unlawfully possessed narcotics, syringes, and other

paraphernalia and raced five horses ("OJ's Diamond", "Makeaduckdance", "Mr. Tony

1. Tuff", "Saint Shining", and "The Game Time") that were under the influence of a narcotic. Respondent, Robert L. Miller, a licensed owner and employee of Wheeler, was charged, along with Wheeler, with unlawful possession of narcotics and syringes, and other paraphernalia. As to respondents, William W. McKibbin and Gaylord Huenfeld, the owners of "OJ's Diamond" and "Makeaduckdance", respectively, the Department seeks the redistribution of the first place purse awarded to them predicated on the assertion that their horses were under the influence of a narcotic when they qualified for the race.

   
   

   At hearing, the Department called as witnesses: Jill Snyder; Harold Duris; Edwin Hemsley; Daniel Gawals; Charles Bowen; David Bahner; David Boyd; Bruce Edmunds; Robert Smith; Mark Kreitz; Sandra Yonkman; Lisa Koscs; Gerald Hayes; David Siegel; Ben Guzzardo; Bih-Hsiung Hsu, accepted as an expert in analytical chemistry and mass spectrometry; John de Kanel, accepted as an expert in analytical chemistry and mass spectrometry; Carol Carlini; Therisea Vempalayim; Mehrzad Mehran, accepted as an expert pharmacist; Rachel Weintraub, accepted as an expert in veterinary medicine; and Robert Miller. The Department's exhibits 1-3, 3A-N, 4A-D, 5-11, 13-16, 18, 18A, 19, 20, 22-25, and 27-31, were received

   into evidence. Testifying on behalf of the respondents were Grover C. Wheeler, William W. McKibbin, and Cynthia Huenfeld.

   
   

   The final volume of the transcript of hearing was filed September 13, 1988, and the parties were granted leave until September 23, 1988, to file proposed findings of fact. Petitioner elected to file proposed findings, and they have been addressed in the appendix to this recommended order.

   
   

   FINDINGS OF FACT

   
   

   The parties

   
   

   1. At all times material hereto, respondents, Grover C. Wheeler (Wheeler) and Robert L. Miller (Miller) held pari-mutual wagering occupational license numbers 0292781 and 0303824, respectively. Wheeler is licensed as a horse owner and trainer, and Miller is licensed as a horse owner.

      
      

   2. Respondents, William W. McKibbin (McKibbin) and Gaylord Huenfeld (Huenfeld) are the owners of the quarterhorses "OJ's Diamond" and "Makeaduckdance", respectively. At all times material hereto, McKibbin and Huenfeld had employed Wheeler to train and race their horses.

      
      

      The 1987 quarterhorse meet

      
      

   3. During the 1987 quarterhorse meet at Pompano Park Race Track, an association authorized to conduct quarterhorse racing in the State of Florida, Wheeler was the trainer of a number of horses, including "OJ's Diamond", "Makeaduckdance", "Mr. Tony B. Tuff", "Saint Shining", and "The Game Time." Miller, although licensed as a horse owner, was a full-time employee of Wheeler.

      
      

   4. On May 13, 1987, Wheeler ran "OJ's Diamond" in the First Division Laddie Stake trials. "OJ's Diamond" was the winner of the trials, and thereby qualified for the Laddie Stake Race to be held on May 22, 1987. When the Laddie Stake Race was run on May 22, 1987, "OJ's Diamond" won, and McKibbin was awarded the first place purse for the race.

      
      

   5. On May 14, 1987, Wheeler ran "Makeaduckdance" in the Seventh Division Lassie Stake trials. "Makeaduckdance" was the winner of the trials and thereby

      qualified for the Lassie Stake race on May 22, 1987. When the Lassie Stake race was run on May 22, 1987, "Makeaduckdance" won, and Huenfeld was awarded the first place purse for the race.

      
      

   6. On May 15, 1987, Wheeler ran "Mr. Tony B. Tuff" in the sixth race at Pompano Park. "Mr. Tony B. Tuff" finished second in that race.

      
      

   7. Between the eighth and ninth race of May 15, 1987, David Boyd, then chief investigator for the Division of Pari-Mutual Wagering, accompanied Dr. Phillips, a veterinarian, to Wheeler's barn to witness the treatment of a horse. Upon arriving at the barn, Mr. Boyd observed Miller and another individual later identified as Bruce Edmunds, a quarterhorse trainer and acquaintance of Wheeler. Mr. Boyd observed Miller call Edmunds over to him and engage in a brief conversation, after which Edmunds proceeded to a plastic bucket located under the shed row of Wheeler's barn, which he removed to Wheeler's tack room.

      
      

   8. Considering Edmunds' and Miller's behavior unusual, Mr. Boyd followed Edmunds to Wheeler's tack room where he confronted Edmunds with his credentials and inspected the contents of the bucket. At that time, Mr. Boyd learned that Edmunds did not own the bucket, but had been requested by Miller to remove it from the shed row to the tack room.

      
      

   9. An inventory and analysis of the contents of the bucket revealed the presence of hypodermic needles, syringes, and various injectable bottles which contained Buprenorphine, Naloxon, and Oxymorphone, all narcotic drugs. Additionally, a racing program was found among the contents of the bucket which contained both Wheeler's and Miller's fingerprints.

      
      

   10. While Wheeler was not present at the barn when the bucket was discovered, the evidence links him and Miller inexplicably to it and its contents. Notably, Wheeler was observed in his tack room on May 13, 1987, with an injectable type syringe.

       
       

   11. Following Mr. Boyd's discovery, the state steward was notified, and the horses Wheeler had entered in the eleventh and twelfth races, "Saint Shining" and "The Game Time," respectively, were scratched on suspicion that they may be under the influence of a narcotic.

       
       

   12. Subsequently, the urine samples that had been taken from "OJ's Diamond" following its win on May 13, 1987, from "Makeaduckdance" following its win on May 14, 1987, and from "Mr. Tony B. Tuff", "Saint Shining" and "The Game Time", following the discovery of the bucket on May 15, 1987, were analyzed. Upon analysis, the urine samples taken from each horse proved positive for the presence of Buprenorphine, a narcotic drug.

       
       

   13. Buprenorphine is a synthetic morphine derivative which, in low dosage, has a stimulatory effect on animals. In such doses, the drug will cause a horse to exceed its natural running ability.

       
       

   14. At no time did Wheeler or any respondent offer any proof that the subject drugs were possessed or administered under the authority of a prescription issued by a physician or veterinarian, nor did they notify the state steward that such substances would be upon the association's premises.

       CONCLUSIONS OF LAW

       
       

   15. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

       
       

   16. Pertinent to this case, Section 550.241, Florida Statutes, provides:

       
       

       1. The racing of an animal with any drug, medication, stimulant, depressant, hypnotic, narcotic, local anesthetic, or drug-masking agent is prohibited. It is a violation of this section for a 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 animal immediately prior to or immediately after the racing of that animal. . . .

       2. Administrative action may be taken by the division against occupational licensees responsible pursuant to rule of the division for the condition of animals which have been impermissibly medicated or drugged in violation of this section.

          (3)(a) Upon the finding of a violation of this section, the Division of Pari-mutuel Wagering may revoke or suspend the license or permit of the violator or deny a license or permit to the violator; impose a fine against the violator in an amount not to exceed

          $5,000; require the full or partial return of the purse, sweepstakes, and trophy of the race at issue; or impose against the violator any combination of such penalties. The finding of a violation of this section shall in no way prohibit a prosecution for criminal acts committed.

          (b) The division, notwithstanding the provision of chapter 120, may summarily suspend the licenses of occupational licensees responsible under this section or division rule for the condition of race animals of the division laboratory reports the presence of an impermissible substance in the animal or its blood, urine, saliva, or any other bodily fluid, either before a race in which the animal is entered or after a race the animal has run.

   17. Pursuant to Section 550.241(6)(a) , Florida Statutes, the Department has adopted Rule 7E-5.0092(1), Florida Administrative Code, which provides:

       
       

       ...The trainer is responsible and is the absolute ensurer of the condition of the horses in his care and custody and for the condition and contents of stalls, tack rooms, feed rooms, sleeping rooms, and other areas which have been assigned by the association to him. A trainer is the absolute ensurer of the condition of the horses in his care and custody during the race and is liable for the presence in his horse during the race of any drug, medication, stimulant, depressant, hypnotic, narcotic, local anesthetic, drug-masking agent, or any other substance not found naturally in the body of a horse....

       
       

       This rule, often referred to as the "absolute insurer rule," renders the trainer the absolute insurer that horses he races do not have any narcotic in their system. Solimena v. State Department of Business Regulation, Division of Pari- Mutual Wagering, 402 So.2d 1240 (Fla. 3d DCA 1981).

       
       

   18. Also pertinent to these cases are the provisions of Rule 7E- 5.0002(10)(i), Florida Administrative Code, which provides:

       
       

       No person except a veterinarian shall possess on the grounds of any association any stimulant, depressant, hypnotic, narcotic, local anesthetic, syringe, containers or vials for use in conjunction with syringes, device, or paraphernalia for administering those substances unless:

       1. under authority of a prescription in writing by a physician or veterinarian, and

       2. the drug or substance is kept in a locked safe or storage container, and

       3. the possessor has notified the state steward of the substance or device and the use for which it is intended.

       
       

   19. The proof is clear and convincing that Wheeler is guilty, as charged, of violating the provisions of Section 550.241(1), Florida Statutes, and Rules 7E-5.0092(1) and 7E-5.0002(10)(i) Florida Administrative Code. Likewise, Miller is guilty, as charged, of violating the provisions of Rule 7E-5.0002(10)(i) Florida Administrative Code.

       
       

   20. In light of the finding that "OJ's Diamond" and "Makeaduckdance" were under the influence of a narcotic when they qualified for the Laddie Stake Race and Lassie Stake Race, respectively, the purses awarded to McKibbin and Huenfeld

in such races are subject to forfeiture and redistribution under the provisions of Section 550.241(3), Florida Statutes.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department enter a final order as follows:

1. Revoking Wheeler's trainer and horse owner license number 0292781.

   
   

2. Sustaining the suspension of Miller's owner license number 0303824, and suspending such license for the period commencing on the date of its emergency suspension until the date of the final order entered herein.

   
   

3. Redistributing the purses awarded in the Laddie and Lassie Stakes finals according to revised racing results based on the disqualification of "OJ's Diamond" and "Makeaduckdance."

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 30th day of September, 1988.

WILLIAM J. KENDRICK

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1050

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 30th day of September, 1988.

APPENDIX TO RECOMMENDED ORDER, CASE NOs. 88-0993, 88-1335, 88-1336, 88-1337, 88-1338

Petitioner's proposed findings of fact are addressed as follows:

1. Addressed in paragraph 1.

2. Addressed in paragraphs 3-6 and 10. 2(sic)-4. Addressed in paragraphs 12 and 13.

1. Addressed in paragraphs 7 and 8.

2. Addressed in paragraph 9.

3. Addressed in paragraphs 9 and 10.

4. Addressed in paragraph 14.

COPIES FURNISHED:

W. Douglas Moody, Esquire Deputy General Counsel

Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007

Norman Rose, Esquire Attorney for Grover C. Wheeler and Gaylord Huenfeld Radice Corporate Center

800 Corporate Drive

Suite 224

For Lauderdale, Florida 33334

Robert L. Miller, Esquire Post Office Box 3611

Plant City, Florida 34289

William W. McKibbin

4603 Northwest 6th Street Gainesville, Florida 32609

Van B. Poole, Secretary Department of Business Regulation The Johns Building

725 South Bronough Street Tallahassee, Florida 32399-1000

Billy Vessel, Director Pari-Mutual Wagering

1350 Northwest 12th Avenue Room 332

Miami, Florida 33136-2169

Joseph A. Sole, Esquire General Counsel

Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1000

Docket for Case No: 88-000993

Orders for Case No: 88-000993