STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

Petitioner,

vs.

DONALD S. ABBEY,

Respondent.

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) Case No. 02-1058PL

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RECOMMENDED ORDER

Administrative Law Judge Don W. Davis of the Division of Administrative Hearings conducted a formal hearing in this case on August 29, 2002, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Joseph M. Helton, Jr., Esquire

Department of Business and Professional Regulation

Northwood Centre

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-2202 For Respondent: No appearance

STATEMENT OF THE ISSUE

Whether Respondent is responsible for three violations of Section 550.2415(1)(a), Florida Statutes, as alleged in the Administrative Complaint, and if so, what penalty should be imposed.

PRELIMINARY STATEMENT

By Administrative Complaint filed January 23, 2002, the Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering (the Division), charged Respondent with the commission of three violations of Section 550.2415(1)(a), Florida Statutes. Specifically, Respondent was charged with the offense of drugging certain race horses in the course of executing his responsibilities as their trainer in May of 2001.

Respondent took issue with the Division's position. By execution of an Election of Rights form on February 12, 2002, Respondent requested formal administrative proceedings.

The case was forwarded to the Division of Administrative Hearings (DOAH) on March 14, 2002.

At the final hearing, Respondent did not appear and no appearance was made on his behalf. The Division presented four witnesses and 18 exhibits.

No transcript of the final hearing has been supplied, but a Proposed Recommended Order submitted by the Division has been reviewed and utilized in the preparation of this Recommended Order.

FINDINGS OF FACT

1. Petitioner is the State of Florida, Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering which is created by Section 20.165(2)(f), Florida

   Statutes. The Division regulates pari-mutuel wagering in the State of Florida.

2. Respondent, Donald S. Abbey, was the holder of a

   
   

   pari-mutuel occupational license, License No. 2013666-1081, that was issued by the Division during the month of May 2001.

3. Hialeah Park is a facility operated by a permit holder authorized to conduct thoroughbred racing and pari-mutuel wagering in the State of Florida. Hialeah Park was so authorized in May 2001.

4. On May 16, 2001, Respondent was the trainer of record and owner of a thoroughbred race horse named “Savahanna.”

5. The horse Savahanna finished second in the first race at Hialeah Park on May 16, 2001.

6. Immediately after the race a urine sample was collected from Savahanna. The urine sample was assigned sample No. 748428 and was shipped to the University of Florida Racing Laboratory.

7. The University of Florida Racing Laboratory tested urine sample No. 748428 and found it to contain Terbutaline.

8. On May 16, 2001, Respondent was the trainer of record and owner of a thoroughbred race horse named "Hada Clue."

9. The horse Hada Clue finished second in the third race at Hialeah Park on May 16, 2001.

10. Immediately after the race, a urine sample was collected from Hada Clue. The urine sample was assigned

    sample No. 748440 and was shipped to the University of Florida Racing Laboratory.

11. The University of Florida Racing Laboratory tested urine sample No. 748440 and found it to contain Terbutaline.

12. On May 18, 2001, Respondent was the trainer of record and owner of a thoroughbred race horse named "Sounds Like Scott."

13. The horse Sounds Like Scott finished second in the fifth race at Hialeah Park on May 16, 2001.

14. Immediately after the race a urine sample was collected from Sounds Like Scott. The urine sample was assigned sample No. 748536 and was shipped to the University of Florida Racing Laboratory.

15. The University of Florida Racing Laboratory tested urine sample No. 748536 and found it to contain Terbutaline.

16. Terbutaline is a bronchodilator and a Class 3 drug according to the Association of Racing Commissioners International classification system.

17. In his Election of Rights, Respondent indicated that he was not the trainer of record. Specifically, he indicated that he had hired a person named Dimitrius Monahas as the trainer with the knowledge of the stewards of Hialeah Park.

18. State Steward Walter Blum testified at the hearing that Respondent was, in fact, the trainer of record for the

    horses Savahanna, Hada Clue, and Sounds Like Scott. At Hialeah, the trainer of record is determined at the time stall spaces are assigned at the beginning of a meet.

19. Respondent’s name appears in the official programs as both the trainer and the owner of the horses at issue. There is a procedure at Hialeah to notify the stewards of a change in trainer. However, Respondent did not notify the stewards of any change.

20. Dimitrius Monahas signed sample tags for sample

    
    

    Nos. 748440 and 748536 as the owner’s witness. The sample tags list Respondent as both the trainer and owner of the horses.

    CONCLUSIONS OF LAW

    
    

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

22. The Division is the agency of the State of Florida that is charged with the regulation of the pari-mutuel wagering industry pursuant to Section 550.0251, Florida Statutes. The Division 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).

23. Section 550.2415(1)(a), Florida Statutes, 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) and from s. 24(a), Art. I of the State Constitution for 10 days after testing of all samples collected on a particular day has been completed and any positive test results derived from such samples have been reported to the director of the division or administrative action has been commenced.

    
    

24. Rule 61D-6.002(1), Florida Administrative Code, reads as follows:

    The trainer of record shall be responsible for and the absolute insurer of the condition of the horses or greyhounds he/she enters to race. Trainers, kennel owners and operators are presumed to know the rules of the division.

    
    

25. Rule 61D-6.002(1), Florida Administrative Code, also known as 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. The validity of the Absolute Insurer Rule has recently been upheld by the First

    District Court of Appeal in Hennessey v. Department of Business and Professional Regulation, 818 So. 2d 697 (Fla. 1st DCA 2002).

26. In an earlier decision regarding the validity of the Absolute Insurer Rule, the Supreme Court of Florida in Division of Pari-Mutuel Wagering v. Caple, 362 So. 2d 1350 (Fla. 1978), stated:

    On review of these more recent authorities, we are now persuaded that Florida should align itself with the well reasoned majority view. 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 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. We have no doubt that a rule which both conditions a license and establishes with

    specificity reasonable precautionary duties within the competence of the licensee to perform is both reasonable and constitutional.

    
    

    Caple, 362 So. 2d 1350, 1354-1355.

    
    

27. The evidence is clear and convincing that Respondent was the trainer of record for the horses Savahanna and Hada Clue

    on May 16, 2001, and Sounds Like Scott on May 18, 2001. He was strictly responsible for their condition when they were found to have tested positive for prohibited drugs.

28. Section 550.2415(1)(c), Florida Statutes, reads as follows:

    (c) The finding of a prohibited substance in a race-day specimen constitutes prima facie evidence that the substance was administered and was carried in the body of the animal while participating in the race.

    
    

29. The provision regarding a positive test result in a race-day specimen as prima facie evidence per Section 550.2415(1)(c), Florida Statutes, creates a rebuttable presumption as to whether an impermissible drug was administered and that the drug was carried in the body of the racing animal. It has been clearly and convincingly established that the animals trained by Respondent produced race-day specimens that contained Terbutaline, which is a prohibited substance. Therefore, the Division has established its prima facie case.

30. Respondent was the trainer of record and owner of the horses in question on May 16, 2001, and May 18, 2001.

    Therefore, Respondent is responsible for the three violations of Section 550.2415(1)(a), Florida Statutes, as alleged in the Administrative Complaint.

31. The penalty guidelines for Class 3 prohibited substances in post-race urine samples were adopted on

February 8, 2001, by an amendment to be found in

Rule 61D-6.011(2)(c), Florida Administrative Code, which

provides:

1. Pursuant to Rule 61D-6.002, Florida Administrative Code, the trainer of record is the absolute insurer of the condition of an animal he or she enters to race. Consequently, when evidence of the presence of an impermissible substance, or substances, is presented to either the Division or to a panel of stewards or judges, the Division or the stewards or judges, absent aggravating or mitigating circumstances, must impose on the trainer of record one or more of the following penalties in accordance with the class of impermissible substance. Provided however, that any discipline imposed by the stewards or judges shall not exceed their authority pursuant to Section 550.1155, Florida Statutes.

   
   

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   (c) Class III impermissible substances:

   
   

   1. First violation $100 to $500 fine,

      
      

   2. Second violation $250 to $750 fine, within 12 months suspension of

      of a previous license up to 30

      violation days.

      
      

   3. Third violation $500 to $1,000 within 24 months fine, and suspension of a second of license for up to

violation, or a 60 days. fourth or any

subsequent viola- tion without regard to the time past since the third violation

1. Under Rule 61D-6.011(2)(a), Florida Administrative Code, the minimum fine for three violations within 24 months would be $850.00 (eight hundred and fifty dollars) with a license suspension of less than 60 days. The Division has not requested a penalty beyond the minimum penalties required.

2. The remedial relief of requiring the return of any purse won due to the second place finish of two of the horses in question is also appropriate here. Respondent was both the trainer and owner of the two horses when they tested positive for Terbutaline at Hialeah Park in May 2001. In Hyman vs. State,

Department of Business Regulation, Division of Pari-Mutuel Wagering, 431 So. 2d 603 (Fla. 3rd DCA 1983), the Third District Court of Appeal held that the requirement that a rule requiring a purse be returned is a remedial measure and is not a penalty under Florida law. The court reasoned in a case involving horse racing that the return of the purse is appropriate where an unfairly disadvantaged animal had participated in a pari-mutuel racing event regardless of any proof of wrongdoing.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that the Division of Pari-Mutuel Wagering enter a final order in this matter suspending Respondent’s

occupational license for a period of ten (10) days and imposing a fine of $850.00.

It is further recommended that the Division of Pari-Mutuel Wagering order that any purse received as a result of the second-place finishes of two of the races in question be returned.

DONE AND ENTERED this 16th day of October, 2002, in Tallahassee, Leon County, Florida.

DON W. DAVIS

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 16th day of October, 2002.

COPIES FURNISHED:

Donald S. Abbey Post Office Box 1199

Pilot Point, Texas 76258-1199

Joseph M. Helton, Jr., Esquire Department of Business and

Professional Regulation Northwood Centre

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-2202

David J. Roberts, Director Division of Pari-Mutuel Wagering Department of Business and

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

Hardy L. Roberts, III, General Counsel Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-2202

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of 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: 02-001058PL

Orders for Case No: 02-001058PL