STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND ) PROFESSIONAL REGULATION, ) DIVISION OF PARI-MUTUEL ) WAGERING, )

)

Petitioner, )

)

v. ) CASE NO. 94-5018

)

GENE ASH, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, Suzanne F. Hood, Hearing Officer with the Division of Administrative Hearings, conducted a formal hearing in this case in Fort Lauderdale, Florida, on January 13, 1995.

APPEARANCES

For Petitioner: Joseph M. Helton, Jr.

Senior Attorney

Department of Business and Professional Regulation

Division of Pari-Mutuel Wagering 1940 North Monroe Street Tallahassee, Florida 32399-1007

For Respondent: Tim A. Shane, Esquire

2455 East Sunrise Boulevard, Suite 905 Fort Lauderdale, Florida 33304

STATEMENT OF THE ISSUES

The issues in the case are whether the licensee, Gene Ash, committed the violations described in the decision of the Judges/Stewards of Pompano Park Harness Track rendered on October 18, 1993, and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

On October 18, 1993, the Judges/Stewards of Pompano Park Harness Track issued Ruling 480-000979 determining that licensee Gene Ash violated Section 550.2415(1)(a), Florida Statutes. This ruling was based on a finding that a post race urine analysis from the Division of Pari-Mutuel Wagering Laboratory on urine sample #908605, collected from the horse Coast Express after the eighth (8th) race on August 20, 1993, revealed the presence of 3- hydroxypromazine, a metabolite of promazine (a tranquilizer and Class III drug). Pursuant to Section 550.2415(3)(a), Florida Statutes, the Judges/Stewards imposed a forty-

five (45) day suspension of Mr. Ash's license to train standardbred harness racing horses at pari-mutuel wagering facilities within the state of Florida. The ruling also: (1) denied Mr. Ash use of the stable area and prohibited horses owned or trained by him from racing during his suspension; (2) required redistribution of the $2,750 purse and disqualified and unplaced Coast Express from the subject race; and (3) and disallowed the new mark of 157.1. set by Coast Express on the day in question.

Mr. Ash filed a written appeal of the ruling with the Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering on November 18, 1993. On September 9, 1994, the Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering, referred this case to the Division of Administrative Hearings for a formal hearing pursuant to Section 120.57(1), Florida Statutes. The case came to the Division of Administrative Hearings in the posture of an appeal. Accordingly, the original style named Mr. Ash as Petitioner and the Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering, as Respondent.

Hearing Officer Michael Parrish issued a Notice of Hearing scheduling the case to be heard on December 8, 1994. By letter dated October 11, 1994, Hearing Officer Parrish advised the parties that: (1) the hearing would be a de novo fact-finding proceeding; (2) the ruling of the Judges/Stewards would form the factual and legal basis upon which the Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering, seeks to take disciplinary action against Gene Ash's license; and (3) the Division of Pari-Mutuel Wagering would bear the burden of proof in the hearing. This letter states that the style of the case should be modified to show the Division of Pari-Mutuel Wagering as Petitioner and Mr. Ash as Respondent. Subsequently, Hearing Officer Parrish granted a continuance and rescheduled the case for hearing on January 13, 1994.

Though the style of the case was not modified, the parties proceeded to final hearing before Hearing Officer Suzanne F. Hood on January 13, 1995. At the hearing the parties agreed on the record to proceed under the provisions set forth in Hearing Officer Parrish's letter dated October 11, 1994. For that reason the style of this Recommended Order and reference to the parties hereinafter is hereby modified to reflect the Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering, as Petitioner and Gene Ash as Respondent.

At the hearing, the parties submitted and the undersigned accepted a stipulation of fact which constitutes the substance of Findings of Fact 1 through 7 of this Recommended Order. In its case-in-chief, Petitioner presented the testimony of two witnesses and offered into evidence four (4) exhibits.

Respondent presented the testimony of five (5) witnesses and offered ten (10) exhibits into evidence. In rebuttal, Petitioner offered the testimony of three

(3) witnesses and offered into evidence two (2) additional exhibits.

During the hearing, Petitioner objected to Respondent's proffered testimony regarding his character and reputation in the industry. The undersigned reserved ruling on Petitioner's objections which will be addressed in the Conclusions of Law of this Recommended Order.

A transcript of the hearing was not ordered. Respondent filed a proposed recommended order on January 19, 1995. Petitioner filed a proposed recommended order on January 20, 1995. A ruling on each proposed finding of fact has been made as reflected in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. Petitioner is the state agency charged with the administration and regulation of the pari-mutuel wagering industry in the state of Florida pursuant to Chapter 550, Florida Statutes, and the rules promulgated thereunder.

   
   

2. Respondent is a trainer of standardbred harness racing horses. Petitioner licensed Respondent to work as a trainer at pari-mutuel wagering facilities within the state of Florida pursuant to pari-mutuel occupational license number 0033544- 1081. Respondent has held such license at all times material to this proceeding.

   
   

3. On August 20, 1993, Respondent was the trainer of record for Coast Express.

   
   

4. Coast Express is a standardbred racing horse participating in harness racing at Pompano Park Harness Track (Pompano).

   
   

5. Pompano is the holder of a valid permit to conduct harness racing for the purpose of conducting pari-mutuel wagering in Broward County, Florida.

   
   

6. On August 20, 1993, Coast Express ran in the eighth race at Pompano. Coast Express won that race posting a time of 157.1, an individual best time for the horse.

   
   

7. After the eighth race on August 20, 1993, Coast Express was taken to the detention barn at Pompano for collection of a urine sample to be analyzed by Petitioner's laboratory.

   
   

8. Daniel Gogan, a groom working at Pompano, took Coast Express to the detention barn.

   
   

9. Walter Mazur, Petitioner's veterinary assistant working in the detention barn, collected urine sample #908605 from Coast Express at 10:11 p.m. Daniel Gogan signed the sample card but Mr. Mazur was the only person in the stall at the time the sample was collected.

   
   

10. Coast Express was the only horse under the care of Walter Mazur during the time the horse was in the detention area for collection of a urine sample.

    
    

11. Samples are collected by placing the race horse in a stall with top and bottom doors. Generally, the Petitioner's veterinary assistant is the only person in the stall with the race horse. However, the trainer, or his groom, may observe the collection of the sample by watching through an open door. Trainers, or their grooms, are only allowed into the stall if invited by the veterinary assistant.

    
    

12. After a sample has been collected, it is sealed and the sample tag is filled out. The sample tag records: (1) the date; (2) the sample number; (3) the horse's name, color, sex, and age; (4) the race in which the horse ran and its finishing position; (5) the track's name; (6) the name(s) of the horse's owner and trainer; and (7) the horse's tattoo number. The tag has three signature lines. The first line is for the veterinary assistant who collected the sample. The second line is for a witness to the sealing of the sample. The third line is for an owner's witness. The time required to collect a sample and seal it in its container is approximately two to five minutes.

13. The sample tag for sample #908605 indicates that the sample was taken from Coast Express on August 20, 1993. The card shows that Coast Express finished first in the eighth race at Pompano. The card indicates that the horse was owned by Coast Express Stable and the trainer is Respondent. The card bears the signatures of: (1) Walter Mazur, veterinary assistant who took the sample;

    (2) Jim Meirs, supervisor of the detention area who witnessed the sealing of the sample; and (3) Daniel Gogan, witness for the owner.

    
    

14. After the sample is collected it is stored in a locked freezer until it is packed for shipping to the Petitioner's laboratory in Tallahassee, Florida, the next working day.

    
    

15. On August 23, 1993, Walter Mazur packed sample number 908605 into a sealed and locked box which was shipped to the Petitioner's laboratory via U.S. Air Mail.

    
    

16. The record indicates that a total of sixteen samples were taken on August 20, 1993. Fourteen of these samples were urine samples. The record is not clear whether sample numbers 908607 and 908608 were blood only or urine only or both. Neither of them were logged on Petitioner's laboratory Report of Samples Logged dated August 23, 1993. There is no explanation in the record for a discrepancy between the number of samples taken on August 20, 1993 and the number of samples received by the laboratory on August 23, 1993. In any event, there is clear and convincing evidence that sample number 908605 was one of fourteen (14) urine samples received in Respondent's laboratory on August 23, 1993, with its seal intact in the sealed and locked box.

    
    

17. On its receipt in the laboratory, sample number 908605 was assigned laboratory number 58511F.

    
    

18. Petitioner's Bureau of Laboratory Services conducts screening tests of all samples received for analysis unless there is an insufficient sample or the sample is not properly secured.

    
    

19. The first screening tests performed on laboratory sample number 58511F were a thin layer chromatography (TLC) analysis and an immunoassay screening known as an ELISA analysis. Both of these tests indicated that the sample was "suspicious" of containing a drug in the promazine family.

    
    

20. When a sample is deemed suspicious by one of the screening tests, it is sent to the confirmation section of the laboratory for testing on an instrument called a gas chromatograph/mass spectrometer (GC/MS or GC/Mass Spec). This instrument is used to confirm the presence of metabolites of drugs which are present in the urine sample. In the instant case, the test was qualitative only even though the state chemists could have performed a quantitative analysis. Quantitative analysis is not done when the sample is "suspicious" of containing a drug in the promazine family because any amount of such drug in a urine sample is prohibited.

    
    

21. The state laboratory file contains a copy of a Mass Spectrometry Method Sheet dated August 31, 1993, which states that the initial GC/MS test could not confirm for any promazine. The file also contains an undated hand written document entitled Suspicious HU Promazine Sample which states that, after ion-pair screening, the IP3 plate did not reveal promazines where they are normally indicated. These documents record the results of some of the initial screening and testing, and in no way detract from the reliability of the final testing and analysis.

22. On September 9, 1993, Carrie Delcomyn, Petitioner's Confirmation Chemist II, requested that David Tiffany, Petitioner's SA/MD Chemist Administrator, run appropriate ELISA screening on the two (2) hour and four (4) hour promazine administrations, numbers 45595B and 45596B, because they were to be used for a possible confirmation of a promazine metabolite seen in the suspect sample. That same day, David Tiffany responded that promazine was not detected using the IDS promazine assay. Mr. Tiffany's response does not imply that the subsequent testing for confirmation of a promazine metabolite in the suspect sample failed to identify 3-hydroxypromazine.

    
    

23. In the final analysis, testing and retesting of laboratory sample number 58511F with the GC/MS confirmed the presence of 3-hydroxypromazine, a metabolite of promazine (a tranquilizer and class 3 drug).

    
    

24. Someone would have to administer promazine to a horse for it to produce a urine sample containing 3-hydroxypromazine.

    
    

25. A chemist administrator reviews the file of a positive sample to ensure the integrity of the chain of custody before a sample is conclusively labeled "positive." A proper chain of custody is an integral part of the positive sample review process. In this case, David Tiffany reviewed the file for sample number 58511F and found it to be in proper order.

    
    

26. On October 22, 1993, a Report of Positive Results was generated by Patrick T. Russell, Petitioner's Bureau Chief, Bureau of Laboratory Services. This report was sent to William E. Tabor, Director of the Division of Pari- Mutuel Wagering, and states that sample number 908605 (laboratory number 58511F) contained 3-hydroxypromazine (a tranquilizer and Class 3 drug). The record contains no explanation for the discrepancy in the date of the report and the date the Judges/Stewards issued their ruling on October 18, 1993.

    
    

27. On November 3, 1993, Respondent requested a split sample analysis pursuant to Section 550.2415(5), Florida Statutes and Rule 61D-1.010, Florida Administrative Code. The split sample was sent to and analyzed by Center for Tox Services, an independent laboratory. Testing of the split sample confirmed the result of the state laboratory. A letter dated November 17, 1993, from the independent laboratory states that:

    
    

    . . .the laboratory was able to detect the

    3-OH promazine utilizing both ELISA and GC/MS techniques. We had no difficulty in detecting the substance using GC/MS. The primary reason for easy detection was due to the fact that the metabolite was present at a concentration that exceeded our detection limit or met our criteria for full scale analysis. There is no doubt that 3-OH promazine was present in the sample we analyzed.

    The GC/MS operator did not set-up his analysis to quantitate the amount of 3-OH promazine in the urine sample. It was not requested.

    
    

28. The above quoted passage from the Center for Tox Services letter clearly does not contain any implications as to the quantity of promazine administered to Coast Express. The testimony of Dr. Mark Phillips, the horse's

    veterinarian, implied that a quantity of promazine administered could be established by virtue of the positive tests reported by the state and independent laboratories. His opinion regarding the quantity and effect of a dosage of promazine which would test positive on a GC/MS instrument is rejected because it is based on technology which is no longer up to date with current testing standards. Additionally Dr. Phillips testimony is contrary to the testimony of Petitioner's expert, David Tiffany, which is more persuasive.

    
    

29. Promazine is a drug used as a tranquilizer. It is possible for a horse to race well after having been administered a very small dose of promazine. This would be particularly true if the horse had a history of being "hot." "Hot" is a term commonly used in the standardbred horse racing industry for a horse that is nervous and difficult to handle.

    
    

30. A very small dose of promazine could enhance the performance of a "hot" horse by calming it down. Under those circumstances, the horse might not exhibit behavioral changes which would be noticeable, i. e. the horse might still appear to be "hot." On the other hand, a normal dose of promazine would cause a horse to be too sluggish to race.

    
    

31. Coast Express was typically a "hot" horse. On August 20, 1993, there was no discernible difference in his behavior. He was "hot", hard to handle, and the opposite of calm or sluggish. It was apparent that Coast Express had not been given a normal tranquilizing dose of promazine. However, there is clear and convincing record evidence that some amount of promazine was in his system on August 20, 1993, which could have enhanced his performance and enabled him to set a record time of 157.1.

    
    

32. Respondent's experts testified that Coast Express's individual best time of 157.1 on August 20, 1993, is consistent with his immediate racing history of 157.3 on August 13, 1993, and September 3, 1993. This testimony is rejected to the extent it implies that the horse's system was free of promazine on August 20, 1993, because it is contrary to more persuasive evidence.

    
    

33. Promazine is a prescription drug. Dr. Mark Phillips, Coast Express's veterinarian, testified that he never prescribed promazine for the horse.

    
    

34. Promazine is normally fed to a horse. Coast Express is a very picky eater and probably would not eat feed with a drug in it. However, promazine can also be injected.

    
    

35. There is no evidence that Respondent or anyone under his control administered promazine to Coast Express. There is no evidence that either of the owners, Nellie Hammel and Fred Segal, administered the drug. However, record evidence indicates that for a period of time on race day, Coast Express was left unsupervised. Someone could have given the drug to Coast Express during that time.

    
    

36. Respondent presented positive testimony relative to his character and good reputation in the harness racing industry.

    
    

    CONCLUSIONS OF LAW

    
    

37. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding pursuant to Section 120.57, Florida Statutes.

38. The Petitioner is the agency of the state of Florida which is charged with the regulation of the pari-mutuel wagering industry pursuant to Section 550.0251, Florida Statutes. Petitioner has the burden of proving by clear and convincing evidence disciplinary action should be taken against Respondent's occupational license. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

39. Section 550.2415(1)(a), Florida Statues, reads as follows: (1)(a) 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. Test results

    and the identities of the animals being tested and of their trainers and owners of record are confidential and exempt from s. 119.07(1) for 10 days after testing for all samples collected on a particular day

    has been completed and positive test results derived from such samples have been reported to the director of the division or administrative action is commenced.

    
    

40. Rule 61D-1.008(11), Florida Administrative Code, provides as follows:

    
    

    The trainer of record shall be responsible for and be the absolute insurer of the condition of the horses or dogs he enters to race.

    Trainers are presumed to know the rules of the division.

    
    

41. Petitioner has met its burden of proving by clear and convincing evidence that Respondent is responsible for a violation of Section 550.2415(1)(a), Florida Statutes. Competent substantial evidence indicates that someone administered promazine, a prohibited drug, to Coast Express on August 20, 1993, prior to the eighth race at Pompano. Rule 61D-1.008(11), Florida Administrative Code, makes Respondent the absolute insurer of the condition of any horse he trains and races.

    
    

42. The absolute insurer rule is based on a theory of strict liability as a condition of licensure which is necessary to protect the industry's integrity. In Division of Pari-Mutuel Wagering v. Caple, 362 So. 2d 1350 (Fla. 1978), an analogous case, the court stated:

    
    

    To protect the integrity of this unique industry, it is really immaterial whether "guilt" should

    be ascribed either directly or indirectly to the trainer. The rules were designed, and reasonably so, to condition the grant of a

    trainer's license on the trainer's acceptance of an absolute duty to ensure compliance with reasonable regulation governing the areas over which the trainer has responsibility. 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.

    
    

    Caple, at 1354.

    
    

43. The above quoted passage from Caple makes it clear that Respondent direct or indirect "guilt" is immaterial. For that reason, Petitioner's objection to evidence of Respondent's good character or reputation is sustained as it relates to whether Respondent is responsible for the violation of Section 5502415(1)(a), Florida Statutes.

    
    

44. The evidence is clear and convincing that sample number 908605 was taken from Coast Express and tested positive for the presence of 3- hydroxypromazine, a metabolite of promazine. There is no evidence of a break in the chain of custody of the sample. Rule 61D-1.010(9), Florida Administrative Code, provides as follows:

    
    

    (9) Absent evidence to the contrary, there is a presumption that the specimen analyzed by the division's laboratory, or another approved laboratory, was collected from the horse or dog as identified and that such sample was not adulterated or otherwise compromised prior to or during any analysis.

    
    

    There is no evidence here sufficient to compromise the integrity of the sample taken from Coast Express.

    
    

45. It is apparent that Coast Express was not given a normal tranquilizing dose of promazine. A small dose of the drug would enhance a "hot" horse like Coast Express without a discernible change in his behavior. However, the quantity of the drug administered to Coast Express and the effect it had on his performance is not at issue. Clear and convincing evidence supports a finding that 3-hydroxypromazine was present in the sample and that Respondent, as trainer of record, was responsible.

46. Section 550.2415(3)(a), Florida Statutes, reads as follows: (3)(a) Upon the finding of a violation of this

    section, the division 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 exceeding $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

    in no way prohibits a prosecution for criminal acts committed.

    
    

47. The undersigned does not agree with Petitioner that Hearing Officer Parrish's letter dated October 11, 1994, limited this proceeding to a de novo review of the facts underlying the Judges/Stewards ruling. The issues framed by Hearing Officer Parrish in the Notice of Hearing includes whether a statutory violation occurred and, if so, what discipline should be imposed. The undersigned has considered all evidence presented in determining that the discipline imposed by the Judges/Stewards is appropriate in this case.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, the undersigned recommends that the Petitioner issue a Final Order finding that Respondent, as trainer of record for the horse Coast Express, is responsible for a violation of Section 2415(1)(a), Florida Statutes, occurring on August 20, 1993, at Pompano. Additionally, the undersigned recommends that said Final Order: (1) suspend Respondent's occupational license for forty-five (45) days;

(2) deny Respondent use of the Pompano stable area during his suspension; (3) declare any horse Respondent owns or trains ineligible to race during his suspension; (4) redistribute the purse of $2,750 won in the subject race; (5) disqualify and replace Coast Express in the subject race; and (6) disallow Coast Express from holding the lifetime mark of 157.1

RECOMMENDED in Tallahassee, Leon County, Florida, this 23rd day of February, 1995.

SUZANNE F. HOOD, Hearing Officer 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 23rd day of February, 1995.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-5018

The following constitute specific rulings, pursuant to Section 120.59(2) Florida Statutes, on the parties' respective proposed findings of fact:

Petitioner's Proposed Findings of Fact:

1-7 Accepted in substance and incorporated in paragraphs 1-7 pursuant to the parties' stipulation of facts.

8-20 Accepted in substance and incorporated in paragraphs 8-20.

1. Accepted in paragraph 23.

2. Accepted in paragraph 24.

23-24 Accepted in paragraph 25.

1. Accepted in paragraph 26.

2. Accepted in paragraph 27.

3. Accepted in paragraph 29.

4. Accepted in paragraph 30.

5. Accepted in paragraph 28.

Respondent's Proposed Findings of Fact:

1-5 Accepted in paragraphs 1-5.

1. Accepted in part in paragraph 6 and rejected in part in paragraph 32.

2. Except for subordinate information, accepted in paragraphs 7-9 and 15-16.

3. Accepted in paragraphs 19 and 21-22.

9-10 Not included in Respondent's proposed findings of fact.

1. Accepted in paragraph 20.

2. Accepted in paragraph 27.

3. Accepted in paragraphs 30-31 as modified.

4. Accepted in part in paragraph 31 but last sentence rejected as contrary to more persuasive evidence.

5. Accepted in paragraph 26 as modified.

6. Accepted in paragraphs 33-34.

7. Accepted in paragraph 36 for consideration only as to appropriate discipline.

COPIES FURNISHED:

Joseph M. Helton, Jr. Senior Attorney

Dept. of Business & Professional Regulation

Division of Pari-Mutuel Wagering 1940 North Monroe Street

Tim A. Shane, Esquire 2455 East Sunrise Blvd. Suite 905

Fort Lauderdale, Florida 33304 George Stewart, Acting Secretary Morthwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

Jack McRay

Acting General Counsel Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

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.

Docket for Case No: 94-005018

Orders for Case No: 94-005018