Findings Of Fact At all times material hereto, Respondent has been licensed to practice medicine in the State of Florida, having been issued license number ME 0034265. In the course of his medical practice, Respondent examined and/or treated the following patients during the following time periods: Marisella Conde January 25, 1980 through March 31, 1980 Pedro B. Conde February 23, 1980 through April 14, 1980 Michelle Conde February 26, 1980 through February 27, 1980 Ana Franjul January 20, 1981 Alfonso deLaTorre September 11, 1980 through November 3, 1980 Zoraida Estrada March 5, 1980 through January 7, 1981 Maria Estrada June 1, 1981 Dulce Febles June 30, 1980 through June 9, 1981 Maria Febles August 5, 1980 through October 17, 1980 At all times material here to, Respondent had in his office a Dow Spectophotometer, a table-sized colorimeter manufactured by Dow Chemical Company and used to diagnose the chemical content of blood. The machine compares the color of a particular reagent with the color of a patient's plasma sample and gives a reading which is interpreted by the physician to achieve a diagnosis. A different, specific reagent is used to achieve each specific component analysis of a plasma sample. The plasma must first be separated from the blood sample by centrifuge, which separates the whole blood from the plasma. The plasma sample must be manually, individually prepared for each specific blood analysis desired and must pass through seven different steps in the Dow machine before completion. A separate vial of plasma and reagent must be manually prepared for each specific blood component test, such as cholesterol or bilirubin, and must be individually loaded into the Dow machine. The machine processes one vial at a time. Each analysis test is prepared separately and manually only the ultimate reading is performed automatically by the machine. The reading is then interpreted by the physician. In September or October 1981, Respondent replaced his Dow machine with an ACA II, a room-sized computer/clinical analyzer manufactured by the Dupont Company and used to analyze blood samples. Respondent is the only private Florida physician known to own and operate an ACA II in his office. The ACA II is in use by several hospitals in the Miami area. The SMAC machine is manufactured by the Technicon Company and is one of the first automated blood analysis machines available. The machine takes one blood sample and is capable of performing up to 26 different analyses from the one blood sample loaded into the machine. It does not require separate, manual preparation of a blood sample for each analysis, as do the Dow and the ACA II machines. The SMAC machine inserts the same needle device into the blood sample for each analysis performed and inserts the same needle device into the blood samples of different patients loaded into the machine. The Technicon SMAC machine is not as accurate as the ACA II machine. Although the Technicon SMAC machine is as accurate as the Dow machine, tests run on the Dow colorimeter have more quality control, since blood samples are individually analyzed and not mixed. The word "SMAC" has come to be generically used by physicians to mean blood tests performed on any type of machine. Thus, the term "SMAC" is generic for blood tests as the word "Frigidaire" is generic for refrigerators. Physicians refer to blood tests as "SMAC 22" or "SMAC 26" to denote a blood test involving 22 or 26, or any other number of analyses, without meaning a blood test performed on Technicon's SMAC machine. Respondent follows the practice of-most other physicians in indicating on his billings that a "SMAC 26" test has been performed, for example, which simply means that a blood test of 26 analyses has been performed. When Respondent billed for "SMAC" tests with each of the nine patients named in the Administrative Complaint, his billing used the word "SMAC" followed by the number of analyses, such as "SMAC 22" or "SMAC 26," and then specifically referred the reader to the attached page. The attached sheet of paper itemized each test included within the battery of analyses and the specific fee being charged by Respondent for each individual analysis. Accordingly, Respondent's use of the generic heading next to the total cost for the blood testing, followed by an itemized listing of each individual analysis together with its specific fee, reflects the chemical analyses as being actually performed as separate blood tests individually processed rather than blood testing run by a Technicon SMAC machine. Respondent's method of billing is an appropriate way to bill a patient for individual tests performed, since Respondent was not using a machine which produces multiple readings from one blood sample loaded into the machine. Occasionally, Respondent used an independent laboratory to perform the blood test as a double check to the test performed in his office by him. In those instances, he did not bill for the independent laboratory test. Respondent himself performed the blood tests for which he billed in the manner in which he billed, each test being performed separately and individually as billed. Respondent advised each of the patients named in the Administrative Complaint as to the use and costs of the tests he intended to perform before performing them, thus obtaining his patient's consent to both the testing and the charges therefor. There are no standards in the practice of medicine prohibiting the use of a Dow machine. There is no maximum fee which can be charged by a physician for laboratory tests, throat cultures or hospital visitations. Petitioner based its entire case on two discovery depositions taken by the Respondent: the deposition of a physician serving as a consultant to Petitioner on this case, and the deposition of a physician employed by an insurance company to whom Respondent sent billings for several of the patients named in the Administrative Complaint filed herein. Both doctors based their opinions on the assumptions that Respondent did not have the equipment in his office capable of testing as was reflected in Respondent's billing, that Respondent did not perform the blood tests but rather had them performed by an independent lab, and that the equipment which Respondent allegedly used could not be purchased. Neither doctor has ever discussed Respondent's billing practices with Respondent or with the patients in question, neither has ever seen Respondent's office or equipment, and neither has examined any of the patients in question nor caused any of the patients in question to be examined. Although each doctor believed that Respondent's charges for testing and examination were excessive, that many of the procedures utilized by Respondent were unnecessary, that Respondent inadequately explained his billing, and that the frequency with which Respondent repeated chemistry profiles on his patients was not medically justified, both doctors admitted that they had inadequate information upon which to support their medical opinions for the reason that both doctors based their entire testimony on only the billings that Respondent rendered to each of the patients; and neither doctor had ever seen any of the patient's medical records, which records include Respondent's office notes which contain the results of his examination of the patients, his impressions, his reasoning for each diagnosis, and his intended course of treatment. Long before the filing of the Administrative Complaint in this cause, the insurance company which referred this matter to Petitioner for investigation sent its own investigator to Respondent's office to ascertain if Respondent had the equipment necessary to perform individual blood testing. The insurance company investigator reported Respondent had much equipment, including the Dow Spectophotometer. Yet that insurance company requested an investigation by Petitioner. Petitioner then sent its investigator to Respondent's office to ascertain if Respondent owned any testing equipment. Respondent showed his machinery, specifically the Dow Spectophotometer, to Petitioner's investigator and demonstrated the equipment by taking a blood sample from the investigator and performing the individualized testing on that sample on the Dow machine. As a result of that demonstration, Petitioner's investigator became a patient of the Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondent not guilty of the charges contained in the Administrative Complaint filed herein and dismissing the Administrative Complaint filed against him. DONE and RECOMMENDED this day of April, 1983, in Tallahassee, Leon County, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of April, 1983. COPIES FURNISHED: Spiro T. Kypreos, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Paul W. Lambert, Esquire Stephen Marc Slepin, Esquire 1114 East Park Avenue Tallahassee, Florida 32301 Frederick Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Dorothy J. Faircloth, Executive Director Board of Medical Directors 130 North Monroe Street Tallahassee, Florida 32301
The Issue An Administrative Complaint, dated March 8, 1990, but amended with leave of the Hearing Officer in an order dated December 17, 1990, alleges that Respondent violated the provisions of Section 943.1395(5) and (6), F.S., and Rule 11B- 27.0011(4)(d), F.A.C., by failing to maintain the qualification established in Section 943.13(7), F.S., requiring "good moral character". The complaint, as amended, alleges that Respondent James E. Lyons, Jr., attempted to purchase, and introduced, cocaine into his body in violation of Section 893.03, F.S., on or about January 20, 1989. The issues are whether those violations occurred and, if so, what discipline is appropriate.
Findings Of Fact James Edward Lyons, Jr., Respondent, was certified as a law enforcement officer by the Petitioner on June 14, 1986, and was issued certificate number 02-86-002-02. At all times relevant to the issues in this proceeding, Officer Lyons was employed as a law enforcement officer by the Brevard County Sheriff's Department and was assigned to the Special Investigations Division, a vice/narcotics enforcement unit. Around midnight on December 31, 1988, Brevard County Sheriff's Deputies, Billy Mitchell Young and Timothy Pemberton, sat in their parked vehicle near Railroad Avenue, an area of the county well-known for illicit drug activity. They had binoculars and were looking for activity with the purpose of intercepting dealers or buyers. They observed a vehicle which, as Deputy Young remarked to his partner, looked alot like "Eddie's" (Respondent's) unmarked department vehicle: a white Thunderbird. Respondent was not a participant in the detail to which the two officers were assigned that evening. The Thunderbird was immobile, and there were two or three people standing around it and moving around in a manner consistent with activity of street dealers competing for a sale. The vehicle stayed parked for about 10-15 minutes. As the two deputies were leaving to back up another team on a traffic arrest, they noticed the Thunderbird run a stop sign at Cross Road and Highway U.S.-1. They commenced pursuit, still unaware of the identity of the occupant. With blue lights flashing, and a spotlight on, the deputies followed the car about three miles before it finally pulled over. The Respondent got out and walked back to the deputies' car to present himself. They were his colleagues, and they knew him to be happy-go-lucky and affable. In this encounter he was very nervous and, according to Deputies Mitchell and Pemberton, he was uncharacteristically anxious to leave. He told them something about hearing about a traffic stop on his radio and going to the Railroad Avenue site to assist. This did not make sense, as the stop to which he referred had occurred much earlier. Mitchell and Pemberton were uncomfortable and somewhat saddened by the event and, at some point, mentioned it to Phillip Shimer, who at that time was in charge of the Brevard County Sheriff's Staff Services Division (including Internal Affairs). On January 20, 1989, Phillip Shimer became involved in an internal investigation involving James "Eddie" Lyons when he was contacted at home early in the morning and was informed that Deputy Lyons was being detained by the Melbourne Police Department on an alleged narcotics violation. The prior evening Deputy Lyons had been found in an area of the City of Melbourne known for narcotics activity. He was in his department Thunderbird attempting to buy crack cocaine from two undercover Melbourne police posing as drug dealers. When one of the undercover police pulled his gun to apprehend him, he fled and was arrested a few blocks away at a convenience store. In a voluntary interview given to Phillip Shimer after his release to the Brevard County Sheriff's personnel, Deputy Lyons explained that he was in the area to meet another Special Investigation Divisions Agent and drove into north Melbourne to see if he could initiate some case activity involving the sale of crack cocaine. He approached two black males on the street and initiated a conversation with them. He attempted to purchase a quantity of cocaine. As the transaction started to take place they identified themselves as police. Deputy Lyons feared that he was going to be robbed, and drove away. The account given by Respondent in his testimony at hearing was similar, but instead of affirmatively trying to make an arrest through a bogus buy, he claimed he was looking for a suspect, "Bobo", and was inquiring of his whereabouts of the two street males when one pulled a gun and he fled. The story would be more plausible if it were not for ensuing events. After listening to Deputy Lyons' explanation, Phillip Shimer suspended him with pay, removed his credentials and secured his department vehicle. He was released on his own recognizance by the Melbourne Police. He was ordered to return to Staff Services at 10:00 a.m. This was delayed until later in the day when Deputy Lyons contacted his superior officer and indicated that he was somewhat upset and did not feel he could respond yet. The parties' prehearing stipulation establishes the following: On January 20, 1989, the Respondent reported to Wuesthoff Hospital in Rockledge, Florida; [in the company of an Internal Affairs Investigator, as required by his superior officer.] At about 2:30 p.m., in a private area of Wuesthoff Hospital, the Respondent urinated into a sterile urine sample cup provided by Wuesthoff Hospital. The cup containing the Respondent's urine sample was promptly received from the Respondent by Wuesthoff Hospital laboratory employee Mr. Wade Wallace. Mr. Wallace immediately capped and sealed the sample cup and labeled it in a manner making it uniquely identifiable as the Respondent's urine sample. At about 2:35 p.m., the sealed sample cup containing the Respondent's urine sample was delivered to the Wuesthoff Hospital Toxicology Laboratory by Mr. Wallace. On January 20, 1989 at about 3:00 p.m., the sample cup containing the Respondent's urine sample was retrieved by laboratory employee Deborah Lanza. Ms. Lanza dispensed a portion of the Respondent's urine sample from the sample cup and performed an initial chemical screen for the purpose of determining if there was evidence of controlled substances or their metabolites in the Respondent's urine sample. On January 20, 1989 at about 3:15 p.m., laboratory employee Valerie Lasobeck Davies dispensed a portion of the Respondent's urine sample from the sample cup and performed a confirmation analysis of the sample. Neither the sample cup nor the Respondent's urine sample had been tampered with, altered or adulterated since the respondent's urine sample was initially collected in the sample cup. Ms. Davies tested the Respondent's sample utilizing the fluorescence polarization immunoassay analysis method. The test results showed that the sample was positive, containing some 4,830 nanograms per milliliter of a metabolite of cocaine, benzoylecgonine. Shortly thereafter, Ms. Davies performed a confirmation analysis by gas chromatography/mass spectrometry. This analysis yielded a positive finding for the cocaine metabolite, ecgonine. Both benzoylecgonine and ecgonine are unique metabolites of cocaine. The quantity of cocaine metabolite in the Respondent's urine sample was indicative of illicit use of the drug by the Respondent within seventy-two hours previous to the time at which he gave the urine sample. The quantity of cocaine metabolite was wholly inconsistent with casual handling of articles contaminated with cocaine or the mere handling, as opposed to ingestion, of the drug itself. Although cocaine residue can be absorbed through the skin, the level that would be achieved on a drug analysis would be substantially less than a 300 nanogram cutoff for a "positive" finding. In addition to evidence of his use of cocaine, Respondent's explanations of the events of December 31st and January 20th are further discredited by the fact that his mode of operation was contrary to well- established instructions and prudent practices of undercover law enforcement. Officers must not work alone, for their own safety and to preserve the integrity of the operation. A witness is important for the legal proceedings that follow. When an undercover operation is planned, law enforcement agencies with concurrent jurisdiction are informed to avoid the obvious possible result: cops arresting cops. After a jury trial, Respondent was acquitted of the criminal offense of attempted purchase of a controlled substance.
Recommendation Based on the foregoing, it is hereby, recommended that the Criminal Justice Standards and Training Commission enter its final order finding Respondent guilty as charged in the Amended Administrative Complaint and imposing the penalty of revocation of his certificate. RECOMMENDED this 7th day of May, 1991, in Tallahassee, Leon County, Florida. MARY CLARK 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 7th day of May, 1991. COPIES FURNISHED: Joseph S. White, Esquire Department of Law Enforcement P.O. Box 1489 Tallahassee, FL 32302 James E. Lyons 415 18th Street, S.E. Winter Haven, FL 33880 Jeffrey Long, Director Criminal Justice Standards and Training Commission P.O. Box 1489 Tallahassee, FL 32302 James T. Moore, Commissioner Dept. of Law Enforcement P.O. Box 1489 Tallahassee, FL 32302
Findings Of Fact Valaria Alsina has been licensed as a medical physician in Florida since 1976 and was so licensed at all times here relevant. On August 19, 1980, Elsa Trujillo and her daughter Nancy, age 12, visited the office of Respondent for treatment. This was the initial visit to Respondent by these patients. Patient histories in Exhibit 3 for Elsa show the first entry to be October 7, 1980; however, the language used in this history clearly shows this to be not Elsa's first visit. Respondent's testimony and reports submitted by Respondent to Petitioner, Exhibit 3, reveal initial complaints by this patient to be dizziness, urinary tract infection, vomiting, vaginal discharge, headache, depression, burning sensation while voiding, and dark urine. Respondent did a urinalysis, took blood for testing, did a PAP smear and vaginal irrigation. Other treatment rendered this patient was not disclosed. The skin and blood tests performed constitute the gravamen of the charges here involved. In Exhibit 1 Respondent billed the insurance carrier for Elsa $359.50 for this visit of August 19, 1980. Those blood tests, the necessity for some of which is questioned by Petitioner, are for glucose, BUN, creatinine, calcium, phosphorus, uric acid, electrolytes (including sodium, potassium, chlorides, and carbon dioxide) total protein, bilirubin, and albumin. The reason the need for these tests is questioned is because they were billed to Prudential Insurance Company as individual tests for each of which Respondent billed from $10.00 to $20.00. These tests are normally performed by medical laboratories in groups, automatically, in which testing machines are programmed to do certain tests on one blood sample introduced into the testing machine. These automatic testing procedures are generically designated "SMA" and are known as SMAC-6, SMAC-16, SMAC-26, etc., with the number denoting the number of tests performed. Those blood tests performed on the Trujillos are all included in the SMAC-22 program for which a laboratory normally charges the doctor $10-$12. Had these tests been charged as SMAC-22, the fact that several were unnecessary would have been accepted because, as a SMAC-22 neither physical nor financial harm resulted to the patient from the unnecessary blood tests conducted. The SMAC-22 could have been performed as cheaply as or cheaper than two manual and individual tests. Since Petitioner's expert witnesses both agreed that some of the tests conducted on this patient were indicated from the symptoms presented, the only fault they found was in Respondent's performing, and charging the patient for, individual and manual blood tests for which there was no medical justification. Nancy Trujillo was seen by Respondent on August 19, 1980. For this visit Respondent billed Prudential Insurance Company $262.50. Clinical data prepared by Respondent for Nancy shows usual childhood diseases, tonsillectomy, adenoid-ectomy, fever, sore throat accompanied by ear pains and swelling, patient complaining of weakness, history of anemia, poor appetite, burning sensation when voiding, dark urine, and a skin rash on right leg. Patient's weight was recorded as 70 pounds, but neither height nor temperature was recorded. In addition to a complete physical examination, a urinalysis, skin culture, and sensitivity test were done, and blood chemistry tests included complete blood count, calcium, glucose, BUN, creatinine, albumin, bilirubin, total protein, and SGPT. These blood tests, all of which (except the cbc) are included in a SMAC-22, were billed as having been performed as individual tests at costs ranging from $10.00 to $17.50 each. Treatment prescribed for Nancy consisted of aspirin suppositories. Respondent testified that Nancy was under weight, although her height was not measured, and that she took Nancy's temperature but failed to record it. Jose Trujillo was seen by Respondent on February 4, 1981, as a patient. Clinical data recorded by Respondent on this visit (Exhibit 3) include ". . . history of diverticulitis of colon, states that have diet but feels like some abdominal discomfort accompanied by diarrhea and feels weak. Patient with history of admission in the hospital, admission Palmetto General Hospital. Some lower discomfort abdomen and dark urine." For this visit prudential Insurance Company was billed $340 for complete physical examination (genital exam omitted) complete blood count; urinalysis; blood tests including glucose, BUN, creatinine, calcium, phosphorus, uric acid, electrolytes (including calcium, potassium, chlorides, and carbon dioxide) total protein, cholesterol, triglycerides, SGOT, SGPT, and alkaline phosphates; urine culture; sensitivity test; and collection and handling. The blood tests were all included in a SMAC- 22 but were billed as individual and manually performed tests with costs ranging from $10.00 to $20.00 each. Petitioner's expert witnesses both testified that some of the tests performed on these three patients were indicated by the symptoms and complaints described. Other tests conducted were not appropriate for the symptoms given. They also agreed that had these tests been conducted and billed as a SMAC-22 they would not consider that that could be a violation of the Medical Practices Act because, even though some of these tests were not medically indicated, they "come with the package" and would not increase the cost to the patient. However, when conducted manually and individually and so billed, the practice of conducting blood tests for which there is no medical justification does not conform to the generally prevailing standards in the medical community. Because of the findings below, it is unnecessary to denote those tests performed on each of the Trujillos for which there was no medical justification. Although billed to Prudential Insurance Company as manually and individually performed, the blood tests on the three patients above-named were conducted as a SMAC-22 and were not performed manually and individually as testified to by Respondent. This determination is based on the following facts, circumstances, and rationalizations: Respondent sent the blood samples from these three patients to Central Medical Laboratory, Inc., for a SMAC-22 test. Respondent testified that she performed each of the series of 10 to 15 tests on the blood samples of these patients in 20 to 30 minutes; however, other medical witnesses testified it took a trained technician 20 minutes to perform one of these blood tests manually. The latter testimony is deemed more credible. Many of these tests have subjective characteristics, such as color comparisons, and identical results from the same blood sample tested by two technicians or run through the same automated process would be rare. The odds against a technician performing individual and manual tests on 16 blood samples and obtaining the identical result on all tests that is obtained from a commercial laboratory SMA test is astronomical. Yet, the one report obtained from Central Medical Laboratory for the SMAC-22 conducted on the blood sample from Jose Trujillo (Exhibit 7) is identical to the "manual and individual" test report maintained by Respondent for the same blood sample in Exhibit 3--with one exception. The laboratory found the triglyceride test to be 254 MG/DL, well outside the 30-175 range for this test. On Exhibit 3 Respondent recorded 175 for this test. She testified she sent blood samples from the three Trujillos to the laboratory to have a check on her tests but did not ask the laboratory to do a recheck on the triglycerides test on Jose or recheck her test for triglycerides after receiving the laboratory report. Only a small amount of blood (5 or 10 cc) is required for an automated procedure for up to 40 different tests, whereas at least three times this amount of serum would be required for 10 tests conducted manually or individually. Accordingly, manual testing would require the drawing of a lot more blood than would be required for automated testing in a commercial lab. Respondent testified that she sent one-half of the blood sample taken on each Trujillo to the laboratory and kept the other one-half to test in her office. Commercial medical laboratories are licensed by the state; are checked for compliance with proper procedures; equipment used is checked for proper calibration at frequent intervals; reagents used in the testing is frequently replaced; and, when compared to the equipment, procedures, calibration, and reagents used in a physician's office which are subject to no regulation, the former should provide the more reliable test in a much shorter time. The equipment in Respondent's office is capable of being used to conduct all of the tests on these three patients for which Respondent billed Prudential Insurance Company. No rational explanation was provided to justify having a SMAC-22 performed and duplicating these tests manually. Respondent's testimony that the SMAC-22 was ordered to check the results of the manual tests she performed is not credible. If a check on the manual tests conducted on blood samples of Nancy and Elsa Trujillo for the August 17, 1980, visit was desired, it would appear appropriate to check the office procedures by doing a SMAC-22 on only one of those blood samples, rather than have both of these samples checked as was done here. Repeating this "check" on the sample taken from Jose Trujillo on February 4, 1981, does not make sense. Either the laboratory test is trusted or it is not. The same applies to the individual tests conducted manually in the office. If confident of the procedures, there would be no reason for Respondent to check the manual tests conducted in the office by sending one-half of the serum to a commercial laboratory. Respondent testified that Central Medical Laboratory picks up blood samples at her office daily. This suggests that some tests are routinely ordered by Respondent and conducted by the laboratory, and no evidence was presented to rebut such a conclusion. On the other hand, Petitioner presented no evidence of the volume of tests conducted by Central Medical Laboratory for Respondent which would solidify this conclusion. Nor did Petitioner submit the SMAC-22 results obtained by Central Medical Laboratory for the blood test conducted on the serum taken from Elsa and Nancy Trujillo on August 17, 1980, to see if they too were identical to the results shown in Exhibit 3. The only rational explanation for having SMAC-22 tests performed in a commercial laboratory and reporting these tests as done individually and manually in Respondent's office is the amount the insurance company will pay for the latter is nearly ten times what they will pay for the former. Laboratory tests billed for Jose Trujillo for the February 4, 1981, visit amount to nearly $250. Charges submitted for these tests reported on the SMAC-22 (Exhibit 7) amount to $187. Respondent testified she paid for the SMAC-22 tests she ordered and did not bill the insurance company for these tests because "they won't pay for both" SMAC and manual tests performed on the same sample. Since the lab charged Respondent only $10-$12 for the SMAC-22 tests conducted, the insurance company would not pay $187 if these tests were charged as automated tests. Considerable evidence was submitted that there was no medical justification for certain of the tests performed on Nancy, Elsa, and Jose Trujillo. For Nancy, these unnecessary tests included tests for calcium, glucose, BUN, creatinine, albumin, bilirubin, total protein, and SGPT. For Elsa, these unnecessary tests were calcium, phosphorus, uric acid, total protein, bilirubin, with either BUN or creatinine justified, but not both. For Jose, no medical justification was shown for manually performed tests for glucose, calcium, phosphorus, electrolytes, SGDT and SGNT. In view of the finding above, that these tests were not manually done but were performed as a SMAC-22, the fact that they are not medically justified if done manually becomes immaterial.
The Issue 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.
Findings Of Fact 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. 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. On August 20, 1993, Respondent was the trainer of record for Coast Express. Coast Express is a standardbred racing horse participating in harness racing at Pompano Park Harness Track (Pompano). Pompano is the holder of a valid permit to conduct harness racing for the purpose of conducting pari-mutuel wagering in Broward County, Florida. 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. 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. Daniel Gogan, a groom working at Pompano, took Coast Express to the detention barn. 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. 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. 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. 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. 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. 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. 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. 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. On its receipt in the laboratory, sample number 908605 was assigned laboratory number 58511F. 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. 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. 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. 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. 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. 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). Someone would have to administer promazine to a horse for it to produce a urine sample containing 3-hydroxypromazine. 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. 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. 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. 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. 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. 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. 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. 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. Promazine is a prescription drug. Dr. Mark Phillips, Coast Express's veterinarian, testified that he never prescribed promazine for the horse. 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. 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. Respondent presented positive testimony relative to his character and good reputation in the harness racing industry.
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. Accepted in paragraph 23. Accepted in paragraph 24. 23-24 Accepted in paragraph 25. Accepted in paragraph 26. Accepted in paragraph 27. Accepted in paragraph 29. Accepted in paragraph 30. Accepted in paragraph 28. Respondent's Proposed Findings of Fact: 1-5 Accepted in paragraphs 1-5. Accepted in part in paragraph 6 and rejected in part in paragraph 32. Except for subordinate information, accepted in paragraphs 7-9 and 15-16. Accepted in paragraphs 19 and 21-22. 9-10 Not included in Respondent's proposed findings of fact. Accepted in paragraph 20. Accepted in paragraph 27. Accepted in paragraphs 30-31 as modified. Accepted in part in paragraph 31 but last sentence rejected as contrary to more persuasive evidence. Accepted in paragraph 26 as modified. Accepted in paragraphs 33-34. 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
