STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF BUSINESS ) REGULATION, DIVISION OF PARI- ) MUTUEL WAGERING, )
)
Petitioner, )
)
vs. ) CASE NO. 91-3719
)
THOMAS A. GRIFFITH, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, a formal hearing was conducted in this case on October 11, 1991, in Fort Lauderdale, Florida, before Claude B. Arrington, a duly designated Hearing Officer of the Division of Administrative Hearings.
APPEARANCES
For Petitioner: Barbara M. Linthicum, Esquire
Assistant General Counsel Department of Business
Regulation
725 South Bronough Street Tallahassee, Florida 32399-1007
For Respondent: Mark S. Peters, Esquire
Stephens, Peters and Greenfield, P.A. 775 East Merritt Island Causeway Suite 310
Post Office Box 54-1760
Merritt Island, Florida 32954-1760 STATEMENT OF THE ISSUE
Whether Respondent, a veterinarian who is licensed to practice veterinary medicine on pari-mutuel grounds, violated the provisions of Rule 7E-1.006(16), Florida Administrative Code, which prohibits a licensee from possessing or causing to be kept on pari-mutuel grounds any drug or medication, unless validly prescribed.
PRELIMINARY STATEMENT
On March 20, 1991, the Division of Pari-Mutuel Wagering (hereinafter the Division), filed an Administrative Complaint against Respondent, charging him with violating Rule 7E-1.006(16), Florida Administrative Code, by possessing or causing to be kept on the grounds of an association a drug or medication which was not validly prescribed. Respondent answered the Administrative Complaint
and requested a formal hearing. The Division forwarded the case to the Division of Administrative Hearings, and this proceeding followed.
At the formal hearing, Petitioner presented the oral testimony of five witnesses: John J. Pozar, Howard E. Westphal, Robert Loudis, Jane Foos, and Cheryl Gemmill. Mr. Pozar is Chief of the Bureau of Investigations, Division of Pari-Mutuel Wagering. Mr. Westphal is an investigator for the Division of Pari- Mutuel Wagering. Mr. Loudis is a pharmacist who was an employee of the Department of Health and Rehabilitative Services at the times pertinent to this proceeding. Ms. Foos is the Chief of the Bureau of Laboratory Services, Division of Pari-Mutuel Wagering. Ms. Gemmill is a horse trainer who worked at Calder Race Track at the times pertinent to this proceeding. Petitioner offered seven exhibits, six of which were admitted into evidence. Respondent testified and presented the oral testimony of three additional witnesses: Harry Benson, Dr. Paul R. Plante, and Dr. Gene Hill. Mr. Benson is the president of the Horseman's Association of Florida. Dr. Plante and Dr. Hill are veterinarians who practice in the State of Florida. The two exhibits offered by Respondent were admitted into evidence.
A transcript of the proceedings has been filed. Both parties filed post- hearing submittals. Rulings on the parties' proposed findings of fact may be found in the Appendix to this Recommended Order.
FINDINGS OF FACT
Petitioner, Department of Business Regulation, Division of Pari-Mutuel Wagering, is the state agency charged with enforcing the provisions of Chapter 550, Florida Statutes, and of Chapter 7E-1, Florida Administrative Code.
Respondent, Thomas A. Griffith, D.V.M., has been licensed to practice veterinary medicine in the State of Florida since 1981. On July 16, 1989, Respondent applied for and received a pari-mutuel wagering occupational license, Number 0063212-1046, as a Veterinarian/Practicing Veterinarian, At all times material hereto Respondent held said licenses. There was no evidence that Respondent's license to practice veterinary medicine or his pari-mutuel wagering occupational license has been subjected to prior disciplinary action.
Petitioner's investigation of Respondent was initiated after routine testing of certain race horses stabled at Calder Race Track detected the presence of clenbuterol in the urine of four horses that had raced at Calder. These four horses were trained by three separate trainers, namely, Cheryl Gemmill, Joe Provost, and a trainer identified only as Mr. Hurtach. Ms. Gemmill trained American Glory and Runaway Irish, two of the four horses that had tested positive for clenbuterol. Respondent was the primary treating veterinarian of American Glory and Runaway Irish, but other veterinarians also treated those two horses when Respondent was not available. The information that the urine of four horses had tested positive for the presence of clenbuterol was forwarded to John Pozar, Petitioner's Chief of Investigations, for further investigation.
Clenbuterol is a drug that has not been approved by the United States Food and Drug Administration (FDA). Application for approval of clenbuterol was made with the FDA in the 1970s, but so far the FDA has not approved clenbuterol for use in the United States, and it is not lawful for a veterinarian in the United States to prescribe clenbuterol for a horse.
Clenbuterol is the active ingredient in a product manufactured and marketed in Canada under the name of Ventipulmin. Clenbuterol is a
bronchodilator which is used to treat horses with chronic obstructive pulmonary disease (COPD). Clenbuterol helps a horse whose respiratory system has become congested from illness or allergy run more normally since it helps to clear the air passages by dilating the bronchial passages and by activating the cilia which assists in the removal of mucous from the lungs. Clenbuterol is not considered a performance enhancing drug and has no effect on the race that a normal horse will run.
Prior to these results, clenbuterol had never been detected in race day samples of horses in Florida.
On January 18, 1991, Mr. Pozar and Howard Westphal, another of Petitioner's investigators, led a surprise search at Calder Race Track of the vehicles of three veterinarians and of the stable areas of the three trainers whose horses had tested positive for clenbuterol. Robert Loudis, an employee of the Department of Health and Rehabilitative Services who has a background in pharmacy, and others assisted in the search. They divided into two groups. One group, consisting of Mr. Westphal, Mr. Loudis, and Diane Niera (another of Petitioner's investigators) was assigned to search Ms. Gemmill's barn. The other group, headed by Mr. Pozar, was assigned to search Joe Provost's barn.
From his chart, Mr. Westphal identified Ms. Gemmill's barn as number
When his group arrived at the barn, Mr. Westphal told Ms. Gemmill that one of her horses had tested positive for the drug clenbuterol. She admitted spraying the drug from some pump bottles into the feed of Runaway Irish. When asked for the bottles, Ms. Gemmill went to her car, opened the trunk, and gave to Mr. Westphal two bottles labeled "Ventipulmin." The Ventipulmin pump bottles indicated on the label that they contained the prohibited drug clenbuterol. One of the bottles was empty and no testing to confirm whether the bottle contained clenbuterol was performed. This empty bottle was admitted into evidence. The other bottle was tested and confirmed to contain clenbuterol. Respondent agrees that Ventipulmin is not an authorized drug, and he does not dispute that the pump bottles removed from Ms. Gemmill's automobile contained Ventipulmin with clenbuterol as an active ingredient.
Mr. Westphal and Mr. Loudis testified as to certain statements made by Ms. Gemmill during their search of her barn area on January 18, 1991. Mr. Westphal and Mr. Loudis testified that when Ms. Gemmill was asked where she obtained the bottles, she stated that she had obtained the bottles from Respondent to use in the treatment of Runaway Irish.
After the search of Ms. Gemmill's barn, Mr. Pozar and Mr. Loudis went to the gate area to await Respondent's arrival at the track. When Respondent arrived in his vehicle, they advised Respondent that they wanted to search his vehicle and told him the purpose of the search. At the gate, prior to the search, Respondent told Mr. Pozar and Mr. Loudis that he had not given Ventipulmin or any other drug containing clenbuterol to Ms. Gemmill and that he had never had those drugs on pari-mutuel grounds. The search of Respondent's vehicle did not reveal any evidence that he had ever possessed Ventipulmin or clenbuterol. There were no empty bottles or boxes or prescription notes for the drugs. 1/
There is a dispute in the evidence as to a second conversation that occurred between Respondent and Mr. Pozar during the actual search of Respondent's vehicle. This second conversation, which took place in the presence of Mr. Loudis, was described by Mr. Pozar as being a casual conversation. Neither Mr. Pozar, who is an experienced law enforcement officer,
nor Mr. Loudis took any notes of the conversation. Mr. Pozar and Mr. Loudis testified that Respondent was asked whether he had supplied clenbuterol to Ms. Gemmill. Mr. Pozar testified that he heard Respondent state that he gave Ventipulmin to either Ms. Gemmill or to her husband. Mr. Loudis testified that to the best of his knowledge, Respondent stated that he physically gave the Ventipulmin to Ms. Gemmill. Both of these witnesses testified that Respondent stated he had obtained the drug at the race track training center, which is adjacent to Calder, from an unidentified man who appeared to be of Latin ancestry. There was no testimony from either Mr. Pozar or Mr. Loudis that Respondent stated when he gave Ventipulmin to Ms. Gemmill or where he was when he gave it to her. There was no evidence Respondent admitted possessing Ventipulmin on pari-mutuel grounds or that he admitted causing Ms. Gemmill to bring Ventipulmin on pari-mutuel grounds.
In contrast to the testimony of Mr. Pozar and Mr. Loudis, Respondent testified that he did not give the Ventipulmin to Ms. Gemmill and that he did not make a statement that he had done so. Respondent further denied that he brought Ventipulmin on pari-mutuel grounds and denies that he ever possessed Ventipulmin or clenbuterol. Respondent stated that he told Mr. Pozar that he had discussed Ventipulmin with Ms. Gemmill after she had asked about its effects on horses with COPD, but that he never prescribed or gave it to her. Respondent also testified that when he discussed Ventipulmin with Ms. Gemmill, he advised her not to bring the drug on pari-mutuel grounds. In support of Respondent's version of the events, Mr. Pozar confirmed that Respondent denied bringing the Ventipulmin on pari-mutuel grounds. Also, Respondent's bills to Ms. Gemmill do not reveal any charge for clenbuterol or for Ventipulmin.
The conflicts in the testimony are resolved by finding that the more credible evidence establishes that Respondent admitted that he caused Ventipulmin to be given to Ms. Gemmill at some unidentified time and at some unidentified location off of pari-mutuel grounds. It is further concluded that the more credible evidence establishes that Respondent admitted that he obtained the Ventipulmin from an unknown male at the race track training center adjacent to Calder Race Track.
The race track training center is not part of the pari-mutuel grounds.
After searching Respondent's vehicle, Mr. Pozar and Mr. Loudis returned to Ms. Gemmill's barn where they took a recorded statement from Ms. Gemmill. The recorded statement was not introduced as an exhibit in the proceeding. Mr. Pozar testified as to the statements he took from Ms. Gemmill. Mr. Pozar testified that Ms. Gemmill said that Respondent was treating her horses Runaway Irish, which had a serious bronchial infection, and American Glory and that because of the condition of Runaway Irish, Respondent had suggested that she use clenbuterol. Mr. Pozar further testified that Ms. Gemmill further stated that Respondent had obtained the clenbuterol for her and that either Respondent or his assistant had given it to her on the track. 2/ While taking the recorded statement, neither Mr. Pozar nor Mr. Loudis asked Ms. Gemmill when Respondent supplied the Ventipulmin.
The horse American Glory was stabled in Ms. Gemmill's barn at Calder from September 1, 1990, to late January of 1991. The horse Runaway Irish was stabled in Ms. Gemmill's barn at Calder from September 1, 1990, until the date of the hearing. The horses were stabled at Calder when Ms. Gemmill received the two bottles of Ventipulmin that were discovered in the trunk of her vehicle.
There was insufficient evidence to conclude that Ms. Gemmill administered clenbuterol to either American Glory or Runaway Irish in order to "hop" one of the horses or to effect one of the races. American Glory finished in fourth place in the race he participated in immediately before his urine sample that tested positive for clenbuterol was taken. American Glory had been one of the favorites in that race.
Ms. Gemmill, who was represented by counsel during the hearing, was initially called as a witness by Petitioner. In response to questions by Petitioner's attorney tailored to avoid Ms. Gemmill from invoking her right against self-incrimination, Ms. Gemmill testified that on January 18, 1991, she made a statement to Mr. Pozar concerning Respondent and how she came into possession of the Ventipulmin. She did not repeat those statements, she did not testify that her statements of January 18, 1991, were truthful, and she did not testify at the hearing that Respondent had prescribed, supplied, or given Ventipulmin to her.
Although several other veterinarians treated Runaway Irish and American Glory, Respondent was the primary veterinarian. From October 10, 1990, until January 19, 1991, Respondent treated American Glory at least forty-two times. From September 30, 1990, to January 18, 1991, he treated Runaway Irish on sixty-five separate occasions. Ms. Gemmill testified that every time Respondent dispensed medication to her, it would be at her barn at Calder. This testimony conflicts with Respondent's denial that he gave Ms. Gemmill Ventipulmin on pari-mutuel grounds or that he possessed Ventipulmin on pari- mutuel grounds. This conflict is resolved by concluding that Ms. Gemmill's generalized testimony is insufficient to establish that Respondent gave her Ventipulmin on pari-mutuel grounds.
Ventipulmin, with its active ingredient of clenbuterol, is readily available without prescription at Calder Race Track and throughout the state.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of this proceeding, pursuant to Section 120.57, Florida Statutes.
Section 550.02(3)(a), Florida Statutes, provides in pertinent part as follows:
The division shall make rules and regulations for the control, supervision, and direction of all applicants, permittees, licensees and for the holding, conducting, and operating of all racetracks, race meets, and races in this state....
Rule 7E-1.006(16), Florida Administrative Code, provides as follows:
No licensee shall possess or cause to be kept on the grounds of an association any drug or medication which is required by federal or state law to be dispenses by prescription, unless said drug or medication has been validly prescribed and is labeled to indicate that it was validly prescribed.
Section 90.801(1)(c), Florida Statutes, contains the following definition of "hearsay":
(c) "Hearsay" is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.
Section 120.58(1)(a), Florida Statutes, provides that hearsay is admissible in an administrative proceeding for the following limited purposes:
Hearsay evidence may be used for the purpose of supplementing or explaining other evidence, but it shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil
actions. ...
Petitioner, as the party asserting the affirmative of the issues raised by the Administrative Complaint, has the burden of proof in this proceeding. Because Petitioner seeks to revoke a valuable license held by Respondent, Petitioner's burden of proof must be established by clear and convincing evidence. See Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987); Evans Packing Co. v. Department of Agriculture and Consumer Services, 550 So.2d
112 (Fla. 1st DCA 1989). Evans Packing, supra, 550 So. 2d 112, 116, fn. 5, provides the following pertinent to the clear and convincing evidence standard:
That standard has been described as follows:
[C]lear 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 evidence 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 the firm belief of (sic) conviction, without hesitancy, as to the truth of the allegations sought to be established. Slomowitz v. Walker, 429 So.2d 797, 800 (Fla. 4th DCA 1983).
Respondent does not contest the fact that the drug clenbuterol is not approved by the Food and Drug Administration for use in the United States and, therefore, cannot validly be prescribed. Further, Respondent does not contest that Ms. Gemmill was in possession of the two pump bottles labeled Ventipulmin which contained the prohibited drug clenbuterol on pari-mutuel grounds, namely, Calder Race Track.
Respondent disputes that he possessed on the grounds of the Calder Race Course or caused Ms. Gemmill to keep on the grounds of Calder the prohibited drug clenbuterol.
Petitioner has established by clear and convincing evidence that Respondent admitted that he caused Ventipulmin to be given to Ms. Gemmill at some unidentified time and at some unidentified location off of pari-mutuel
grounds. The out-of-court statement by Respondent is an admission against interest which is admissible as substantive evidence as an exception to the hearsay rule. Section 90.803(18), Florida Statutes.
There was no competent, substantial evidence that Respondent possessed Ventipulmin on pari-mutuel grounds. Petitioner's contention that Ms. Gemmill's hearsay statements made to either Mr. Westphal or to Mr. Pozar on January 18, 1991, can be used to establish that Respondent possessed clenbuterol at Calder when he gave Ventipulmin to her at the track is rejected. Notwithstanding Ms. Gemmill's appearance at court, these out of court statements are hearsay. Ms. Gemmill did not repeat those statements, she did not testify that her statements of January 18, 1991, were truthful, and she did not testify at the hearing that Respondent had prescribed, supplied, or given Ventipulmin to her. Petitioner cannot use these hearsay statements to establish a critical factual element of its charge in the name of "supplementing" or "explaining" other competent evidence.
Likewise, Ms. Gemmill's hearsay statements made January 18, 1991, cannot be used to establish that Respondent caused her to bring Ventipulmin on pari-mutuel grounds. There was no competent, substantial evidence to establish when Respondent caused the Ventipulmin to be given to Ms. Gemmill and there was no competent, substantial evidence to establish that Respondent exercised any control over the Ventipulmin once he had caused the Ventipulmin to be given to her. Although Respondent was the primary treating veterinarian for Ms. Gemmill's horses, the presence of the Ventipulmin in the trunk of Ms. Gemmill's vehicle suggests that she exercised exclusive control over the possession of the two bottles. The conclusion that Respondent caused her to bring the clenbuterol on pari-mutuel grounds would have to be based either on Ms. Gemmill's hearsay statements or on speculation.
Petitioner has failed to meet its burden of proof in this proceeding, whether that burden is characterized as being by clear and convincing evidence or as being by a preponderance of the evidence.
Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby recommended that a Final Order be entered which adopts the findings of fact contained herein and which dismisses the charges contained in the administrative complaint.
RECOMMENDED this 13th day of December, 1991, in Tallahassee, Leon County, Florida.
CLAUDE B. ARRINGTON
Hearing Officer
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 13th day of December, 1991.
ENDNOTES
1/ The surprise search of the vehicles of the other two veterinarians and of the barn areas used by the other two suspected trainers, Mr. Provost and Mr. Hurtach, likewise failed to detect any evidence of the presence of clenbuterol.
2/ See the Conclusions of Law portion of this Recommended Order for the discussion pertaining to the use of these hearsay statements.
APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-3719
The following rulings are made on the proposed findings of fact submitted on behalf of the Petitioner.
The proposed findings of fact in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, and
10 are adopted in material part by the Recommended Order.
The proposed findings of fact in paragraph 11 are adopted in part by the Recommended Order, but are rejected in part to the extent that the proposed findings conflict with the findings made resolving the conflict between the testimony of Ms. Gemmill and Respondent.
The proposed findings of fact in paragraph 12 are adopted in part by the Recommended Order, but are rejected in part to the extent that the proposed findings conflict with the findings made as to effect of clenbuterol.
The following rulings are made on the proposed findings of fact submitted on behalf of the Respondent. The unnumbered paragraphs of Respondent's post- hearing submittal will be referred to sequentially.
The proposed findings of fact in the first, third, fourth, fifth, sixth, seventh, eighth, ninth, tenth, thirteenth, and the seventeenth paragraphs are adopted in material part by the Recommended Order.
The proposed findings of fact in the second paragraph are rejected as being unnecessary to the conclusions reached, but are discussed in other parts of the Recommended Order.
The proposed findings of fact in the eighth, fourteenth, and fifteenth paragraphs are rejected as being subordinate to the findings made.
The proposed findings of fact in the eleventh paragraph are rejected as being unnecessary to the conclusions reached.
The proposed findings of fact in the first sentence of the twelfth paragraph are rejected as being unnecessary to the conclusions reached. The remainder of the twelfth paragraph is adopted in material part by the Recommended Order.
COPIES FURNISHED:
Barbara M. Linthicum, Esquire Assistant General Counsel Department of Business
Regulation
725 Bronough Street
Tallahassee, Florida 32399-1007
Mark S. Peters, Esquire
Stephens, Peters and Greenfield, P.A. 775 East Merritt Island Causeway Suite 310
Post Office Box 54-1760
Merritt Island, Florida 32954-1760
William E. Tabor, Director Pari-Mutuel Wagering Department of Business
Regulation
725 South Bronough Street Tallahassee, Florida 32399-1007
Donald D. Conn, Esquire General Counsel Department of Business
Regulation
725 South Bronough Street Tallahassee, Florida 32399-1007
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS:
All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.
=================================================================
AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA DIVISION OF PARI-MUTUEL WAGERING
DEPARTMENT OF BUSINESS REGULATION, DIVISION OF PARI-MUTUEL WAGERING,
Petitioner,
DPMW CASE NO. 9103015
vs. DOAH CASE NO. 91-003719
THOMAS A. GRIFFITH,
Respondent.
/
FINAL ORDER
This cause came before me for the purpose of issuing a final agency order. The Hearing Officer assigned by the Division of Administrative Hearings (DOAH) in the above-styled case submitted a Recommended Order to the parties to this action on December 13, 1991. A copy of this Recommended Order is attached as Exhibit A. Petitioner and Respondent timely filed exceptions to the Recommended Order. Additionally, Respondent filed a Motion to Strike in Response to Petitioner's exceptions.
RULINGS ON EXCEPTIONS
Petitioner has filed four exceptions to the Recommended Order. My review of these exceptions and motion must be undertaken within the constraints of Section 120.57(1)(b)10, Florida Statutes, which provides that Findings of Fact made by a Hearing Officer in administrative proceedings must be upheld here they are based upon competent, substantial evidence. Florida Department of Corrections v. Bradley, 510 So.2d 1122 (Fla. 1st DCA 1987) Heifetz v. Department of Business Regulation, 475 So.2d 1277 (Fla. 1st DCA 1985). I am not free to reweigh the evidenc or rejudge the credibility of witnesses. Heifetz v.
Department of Business Regulation, 475 So. 2d 1277, 1281 (Fla. 1st DCA 1985) I am not bound by the Hearing Officer's conclusions of law. I am free to substitute my own legal conclusions for those of the Hearing Officer, so long as competent, substantial evidence supports my legal conclusions. Harloff v. City of Sarasota, 575 So.2d 1324 (Fla. 2d, DCA 1991); MacPherson v. Scbool Board of Monroe County, 505 So.2d 682 (Fla. 3d DCA 1987); Hunter v. Department of Professional Regulation, 458 So.2d 842 (Fla. 2d DCA 1984). I will rule on the exceptions, applying the criteria set forth above. My ruling on the exceptions should not be construed as necessarily signifying approval or disapproval of the frequently lengthy rationale the parties have proffered in supportof their exceptions.
RESPONSE TO EXCEPTIONS OF PETITIONER
Exception 1
The Petitioner takes exception to the Hearing Officer's Finding of Fact in paragraph 5 of page 4 of the Recommended Order insofar as it states "Clenbuterol is not a performance enhancing drug." There is no competent, substantial evidence to support this statement. Indeed, the competent and substantial evidence of the record establishes Clenbuterol is a performcnce enhancing drug. A drug does not have to "hop" up a horse for the drug to be considered performance enhancing. Rather, a performance enhancing drug need only make a horse run better than the horse would have run, had he not been administered the drug.
At least three of the Respondent's own witnesses testified that Clenbuterol would enhance the performance of a horse with chronic obstructive pulmonary
disease. Dr. Paul Plante, a veterinarian who practices at Pompano Harness Track, reluctantly testified on cross examination that "Clenbuterol will enhance an ill horse's performance if he is maintained on the drug for a long enough period of time." In response to the question of whether Clenbuterol will allow a horse to breathe better and perform better, he answered "yes." (T-163, 164).
Dr. Gene Hill testified that the administration of Clenbuterol would remove congestion from the horse's lungs and permit the horse to perform better in a race. (T-l68) In his deposition which was introduced by Respondent, Dr. Paul Doig of Boehringer-Ingelheim, the company which markets the product Ventipulman (trade name of Clenbuterol), answered "yes" to the following question: "But for an individual horse who can't run because he can't get enough air because he has COPD, it would certainly improve his performance?" (Doig Cross Depo. P-l3)
What the Hearing Officer failed to understand is that a drug can enhance performance even though the horse's performance is not enhanced beyond his personal best. Most horses in Florida cannot achieve their personal best because so many suffer the symptoms of COPD. If a horse's performance can be enhanced from something less than his personal best to his personal best, it may be enough to change the outcome of a race.
If American Glory who ran on December 30, 1990, had COPD, an administration of Clenbuterol close enough to race time to detect it in a post-race sample would have cease the horse's lungs and allowed it to run better than it would have run, had it not been administered the drug. The fact that American Glory finished fourth in the race does not disprove that Clenbuterol is a performance enhancing drug. In its next two races ran without Clenbuterol, American Glory finished fifth and twelfth and is no longer being trained by Ms. Gemmill.
Therefore, this exception is accepted, and it is added to Finding of Fact
Clenbuterol is a performance enhancing drug.
Exception 2
The Petitioner takes exception to the Hearing Officer's Finding of Fact in paragraph 13, that there was competent, substantial evidence that Clenbuterol was given to Ms. Gemmill by Dr. Griffith off the grounds of a pari-mutuel facility. On the contrary, there was competent, substantial evidence the transaction took place on the pari-mutuel facility. The Hearing Officer found and Dr. Griffith admitted to giviing Clenbuterol to Ms. Gemmill. Ms. Gemmill's testimony at hearing, when she was asked the question: "Anytime you received drugs for your horses from Dr. Griffith, where did you physically receive them?" She responded: "Physically anytime medication was dispensed, it would be at my barn at Calder." (T-133-134) For Dr. Griffith to be able to dispense the Clenbuterol to Ms. Gemmill at her barn at Calder, he had to possess it on pari- mutuel grounds. Cheryl Gemmill's statements both to the Hearing Officer and to the investigators that Dr. Griffith gave her the Clenbuterol on pari-mutuel facilities, are admissible and may form the basis of a finding of fact. The hearsay statements supplement and explain her statement given at hearing: "Physically anytime medication was dispensed (by Dr. Griffith), it would be at my barn at Calder." Those two statements in combination are compelling evidence that Dr. Griffith possessed Clenbuterol on Calder Race Track.
Therefore, this exception is accepted, and replaces the first sentence in Finding of Fact 13. Dr. Griffith gave Ms. Gemmill the Clenbuterol on the pari- mutuel grounds.
Exception 3
The Petitioner takes exception to that portion of Finding of Fact 13 which failed to find that Dr. Griffith caused Ms. Gemmill to keep Clenbuterol on the grounds of the pari-mutuel facility. Causing a drug to be kept on pari-mutuel grounds does not require that Dr. Griffith maintain control over the drug after he gives it to Ms. Gemmill. Rather, it is enough that by giving Ms. Gemmill the Clenbuterol, Dr. Griffith knew or should have known the events would require Ms. Gemmill to bring, administer or store the Clenbuterol on pari-mutuel grounds.
Under these circumstances, the actions of Dr. Griffith caused the Clenbuterol to be kept on pari-mutuel grounds. The factual evidence is overwhelming that Dr.
Griffith gave Ms. Gemmill the Clenbuterol knowing that it would end up on pari- mutuel grounds. Cheryl Gemmill testified at hearing to this fact. She answered "yes" to the question: "When you received the Ventipulman were they (American Glory and Runaway Irish) stabled at Calder?" American Glory was stabled in Ms. Gemmill's barn at Calder from September 1, 1990, to late January of 1991, and Runaway Irish was stabled at Calder from September l, 1990, until the date of the hearing. The evidence shows that Runaway Irish did not leave the grounds since he arrived in September.
The evidence also shows that Dr. Griffith knew that the horses Runaway Irish and American Glory were stabled at Calder. The Hearing Officer found that from October 10, 1990, until January 19, 1991, Dr. Griffith treated American
Glory at least 42 times. From September 30, 1990, to January 18, 1991, he treated Runaway Irish on 65 separate occasions.
Inasmuch as the Clenbuterol was seized on January 18, 1991, it is only reasonable to conclude that by giving the Clenbuterol to Ms. Gemmill, Dr.
Griffith knew or should have known that it would be administered to a racing animal on a pari-mutuel facility. The evidence further shows that Dr. Griffith was treating Runaway Irish for a bronchial infection. Dr. Griffith testified to that fact at hearing. (T-173) His treatment records confirm that the horse Runaway Irish had a bronchial infection from the last part of December of 1990 to the middle part of January of 1991.
Lastly, the evidence shows that Dr. Griffith gave Ms. Gemmill the Clenbuterol to treat the brochial infection of Runaway Irish. The Hearing Officer found, based on Dr. Griffith's testimony, that he discussed with Ms. Gemmill the advantage of using the drug Clenbuterol to assist in the treatment of RunawayIrish's bronchial infection. The Hearing Officer found that subsequent to the conversation, Dr. Griffith gave the Clenbuterol to Ms.
Gemmill.
The Clenbuterol given to Ms. Gemmill was in the form of a pump bottle which was to be administered on the feed of the horse. Mr. Loudis testified that Ms. Gemmill told him that she was in fact spraying the Clenbuterol onto the feed of the horse Runaway Irish. 1/ (T-68)
Dr. Griffith gave Ms. Gemmill the Clenbuterol for the horse Runaway Irish who had a bronchial infection knowing that if the drug was to be of any value, it had to be brought onto pari-mutuel grounds where the horse was stabled and fed. The only alternative was for Ms. Gemmill to remove Runaway Irish from the pari-mutuel facility every time she fed him. Not only is there evidence that the horse was not removed, but it is unreasonable for Dr. Griffith to assume that the horse would be removed. In addition, Dr. Griffith knew the horses were not being removed from Calder to receive Clenbuterol because the treatment records show that he was at Ms. Gemmill's barn treating American Glory or
Runaway Irish, at least, once a day from December 28, 1990, to early January 1991, and from January 5 through 12, 1991, he was there, at least, twice a day.
There is competent, substantial evidence to show that Dr. Griffith set in motion a series of events that inevitably resulted in the Clenbuterol being brought on and kept on the grounds of Calder Race Track, when he gave the drug to Ms. Gemmill for the purpose of treating a horse who he knew was stabled on pari-mutuel grounds. Therefore, this exception is accepted, and it is added to Finding of Fact 13. Dr. Griffith caused Clenbuterol to be on the grounds of the pari-mutuel facility.
Exception 4
The Petitioner seeks an additional conclusion of law as set forth on pages 3-4 of Petitioner'S Exceptions to Recommended Order filed on January 6, 1992.
Finding myself in agreement with the legal conclusions set forth in these exceptions, and being satisfied that substantial, competent evidence supports these proposed additional conclusions of law, the exception is accepted, and the additional conclusion of law are adopted as set forth herein. Clenbuterol is illegal to possess in the United States.
Robert Loudis, who was formerly a drug agent with the Department of HRS and who participated in the searches of Ms. Gemmill's barn and Dr. Griffith's vehicle on January 18, 1991, testified that possession of the drug Clenbuterol is a misdemeanor. He further testified that posslession with intent to sell, deliver or dispense is considered a third degree felony under Section 449.03, Florida Statutes. (T-77). This fact is important because the Hearing Officer did find that Dr. Griffith obtained the Clenbuterol and delivered it to Ms.
Gemmill, an apparent violation of Section 449.03, Florida Statutes. While it
is not the Hearing Officer's responsibility to determine criminal violations, it does indicate the seriousness of Dr. Griffith's misconduct.
Therefore, this exception is accepted, and the Conclusions of Law are modified accordingly.
RULING ON MOTION TO STRIKE
Respondent has filed a Motion to Strike subsequent to Petitioner's Exceptions. Both the Recommended Order and Rule 28-5.404, Florida Administrative Code, clearly state:
Parties may file exceptions to findings of fact with the Agency responsible for rendering final Agency action...
Section 120.57(b)(9), Florida Statutes, states:
Except as provided in subparagraph 13, the hearing officer shall complete and submit to the agency and all parties a recommended order consisting of his findings of fact, conclusions of law, interpretation of administrative rules, and recommended penalty, if applicable, and any other information required by law or agency rule to be contained in the final order. The agency shall allow
each party at least 10 days in which to submit written exceptions to the recommended order.
WHEREFORE, Respondent's Request to Strike Petitioner's Exceptions to the Recommended Order is hereby DENIED.
EXCEPTIONS ACCEPTED AS FINDINGS OF FACT
Clenbuterol is a performance enhancing drug.
Ms. Gemmill received Clenbuterol from Dr. Griffith on the grounds of Calder Race Course, a pari-mutuel facility.
Dr. Griffith caused the Clenbuterol that he gave to Ms. Gemmill to be kept on the grounds of Calder Race Course, apari-mutue1 facility.
FINDINGS OF FACT
Based upon the foregoing analysis and conclusions, it is ORDERED:
Except as is otherwise stated in this Final Order, the Findings of Fact set forth in the Hearing Officer's Recommended Order dated December 13, 1991, are adopted and incorporated herein by reference. The Findings of Fact adopted and incorporated herein are supported by competent, substantial evidence.
Except as is otherwise stated in this Final Order, the Conclusions of Law set forth in the Hearing Officer's Recommended Order dated December 13, 1991, are adopted and incorporated herein by reference. The legal conclusions adopted and incorporated herein are supported by competent, substantial evidence and legal reasoning.
The following additional Findings of Fact are supported by competent, substantial evidence and after my review of the complete record in this matter are included herein:
CONCLUSIONS OF LAW
1. The Division hereby adopts and incorporates by reference the findings of fact set forth in the Recommended Order.
EXCEPTIONS ACCEPTED AS CONCLUSIONS OF LAW
1. Clenbuterol is illegal to possess in the United States. Accordingly, based upon the foregoing, it is ORDERED that the Respondent SHALL within thirty
(30) days of the filing of this Final Order, surrender to the Division of Pari- Mutuel Wagering all licenses issued by the Division. Respondent's pari-mutuel license is hereby REVOKED and he is declared ineligible to reapply for 1icensure in the Division of Pari-Mutuel Wagering, State of Florida, for a period of 120 days.
DONE AND ORDERED this 12 day of March, 1992 in Tallahasssee, Florida.
WILLIAM E. TABOR, DIRECTOR
Division of Pari-Mutuel Wagering Johns Building - Room 114K-2
5 South Bronough Street Tallahassee, Florida 32399-1035 (904) 488-9130
ENDNOTE
1/ Although this statement is hearsay, Respondent did not object to its admissibility. Based on Tri-State Systems, Inc. v. Department of Transportation, 500 So.2d 212, 215 (1st DCA 1986), unobjected to hearsay "becomes part of the evidence in the case and was usable as proof just as any other evidence."
RIGHT TO APPEAL
This Final Order, which constitutes final agency action, may be appealed pursuant to Section 120.68, Florida Statutes, and Rule 9.110, Florida Rules of Appellate Procedure, by filing a Notice of Appeal, accompanied by the appropriate filing fees, conforming to the requirements of Rule 9.110(d), Florida Rules of Appellate Procedure, both with the appropriate District Court of Appeal, accompanied by the appropriate filing fees, and with this agency within 30 days of this Final Order being filed with the Clerk of the Division.
Copies furnished to:
Claude D. Arrington, Hearing Officer Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
Donald D. Conn, General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007
Mark S. Peters, Esquire
775 East Merritt Island Causeway Suite 310
Post Office Box 541760
Merritt Island, Florida 32954-1760
Barbara M. Linthicum, Assistant General Counsel Department of Business Regulation
725 South Bronough Street Tallahassee, Florida 32399-1007
Bureau of Operations Licensing Section
Bureau of Investigations Law Library
Association of Racing Commissioners International Kentucky Horse Park
4067 Iron Works Pike Lexington, Kentucky 40511
General Manager, Pompano Park Chief Inspector, Pompano Park Judges/Stewards
Director of Security, Pompano Park American Quarter Horse Association
P.O. Box 200
Amarillo, Texas 79168
| Issue Date | Proceedings |
|---|---|
| Feb. 17, 1993 | Opinion third DCA 18 FLW D445 filed. |
| Mar. 30, 1992 | (Petitioner) Order of Stay filed. |
| Mar. 18, 1992 | Final Order filed. |
| Jan. 30, 1992 | (Petitioner) Response to Respondent`s Request to Strike filed. |
| Jan. 16, 1992 | (Respondent) Request to Strike Petitioner`s Exceptions to Recommended Order filed. |
| Dec. 13, 1991 | Recommended Order sent out. CASE CLOSED. Hearing held 10/11/91. |
| Nov. 15, 1991 | (Petitioner) Proposed Recommended Order filed. |
| Nov. 07, 1991 | Respondent`s Post Hearing Memorandum filed. |
| Nov. 05, 1991 | Notice of Filing Transcript; Transcript filed. (From Barbara M. Linthicum) |
| Oct. 11, 1991 | Memorandum of Law filed. |
| Oct. 11, 1991 | CASE STATUS: Hearing Held. |
| Sep. 27, 1991 | Notice of Taking Deposition filed. (From Mark S. Peters) |
| Sep. 12, 1991 | Order Regarding Production of Documents sent out. |
| Sep. 09, 1991 | (Petitioner) Motion to Shorten Time to Produce Documents filed. (From Barbara M. Linthicum) |
| Sep. 03, 1991 | (Respondent) Notice of Taking Deposition filed. |
| Aug. 29, 1991 | (Respondent) Notice of Service of Interrogatories filed. (From Mark S. Peters) |
| Aug. 29, 1991 | (Respondent) Notice of Service of Interrogatories w/Interrogatories filed. (From Mark S Peters) |
| Aug. 08, 1991 | (Petitioner) Interrogatories filed. (From Barbara M. Linthicum) |
| Aug. 07, 1991 | (DBR) Notice of Taking Deposition w/Subpoena Ad Testificandum filed. (From Barbara M. Linthicum) |
| Aug. 02, 1991 | Request for Subpoenas w/Notice of Taking Deposition (3) filed. (From Mark S. Peters) |
| Jul. 26, 1991 | Notice of Service of Interrogatories filed. |
| Jul. 10, 1991 | Notice of Hearing sent out. (hearing set for Oct. 11, 1991; 9:30am; Ft Laud). |
| Jul. 03, 1991 | (DBR) Response to Initial Order filed. |
| Jul. 03, 1991 | (DBR) Notice of Appearance filed. |
| Jun. 19, 1991 | Initial Order issued. |
| Jun. 17, 1991 | Agency referral letter; Administrative Complaint; Election of Rights;Answer filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Mar. 12, 1992 | Agency Final Order | |
| Dec. 13, 1991 | Recommended Order | No clear and convincing evidence that veterinarian possessed or caused to be possessed on pari-mutual grounds, medication not approved by FDA. |
