Findings Of Fact The parties At all times material hereto, respondents, Grover C. Wheeler (Wheeler) and Robert L. Miller (Miller) held pari-mutual wagering occupational license numbers 0292781 and 0303824, respectively. Wheeler is licensed as a horse owner and trainer, and Miller is licensed as a horse owner. Respondents, William W. McKibbin (McKibbin) and Gaylord Huenfeld (Huenfeld) are the owners of the quarterhorses "OJ's Diamond" and "Makeaduckdance", respectively. At all times material hereto, McKibbin and Huenfeld had employed Wheeler to train and race their horses. The 1987 quarterhorse meet During the 1987 quarterhorse meet at Pompano Park Race Track, an association authorized to conduct quarterhorse racing in the State of Florida, Wheeler was the trainer of a number of horses, including "OJ's Diamond", "Makeaduckdance", "Mr. Tony B. Tuff", "Saint Shining", and "The Game Time." Miller, although licensed as a horse owner, was a full-time employee of Wheeler. On May 13, 1987, Wheeler ran "OJ's Diamond" in the First Division Laddie Stake trials. "OJ's Diamond" was the winner of the trials, and thereby qualified for the Laddie Stake Race to be held on May 22, 1987. When the Laddie Stake Race was run on May 22, 1987, "OJ's Diamond" won, and McKibbin was awarded the first place purse for the race. On May 14, 1987, Wheeler ran "Makeaduckdance" in the Seventh Division Lassie Stake trials. "Makeaduckdance" was the winner of the trials and thereby qualified for the Lassie Stake race on May 22, 1987. When the Lassie Stake race was run on May 22, 1987, "Makeaduckdance" won, and Huenfeld was awarded the first place purse for the race. On May 15, 1987, Wheeler ran "Mr. Tony B. Tuff" in the sixth race at Pompano Park. "Mr. Tony B. Tuff" finished second in that race. Between the eighth and ninth race of May 15, 1987, David Boyd, then chief investigator for the Division of Pari-Mutual Wagering, accompanied Dr. Phillips, a veterinarian, to Wheeler's barn to witness the treatment of a horse. Upon arriving at the barn, Mr. Boyd observed Miller and another individual later identified as Bruce Edmunds, a quarterhorse trainer and acquaintance of Wheeler. Mr. Boyd observed Miller call Edmunds over to him and engage in a brief conversation, after which Edmunds proceeded to a plastic bucket located under the shed row of Wheeler's barn, which he removed to Wheeler's tack room. Considering Edmunds' and Miller's behavior unusual, Mr. Boyd followed Edmunds to Wheeler's tack room where he confronted Edmunds with his credentials and inspected the contents of the bucket. At that time, Mr. Boyd learned that Edmunds did not own the bucket, but had been requested by Miller to remove it from the shed row to the tack room. An inventory and analysis of the contents of the bucket revealed the presence of hypodermic needles, syringes, and various injectable bottles which contained Buprenorphine, Naloxon, and Oxymorphone, all narcotic drugs. Additionally, a racing program was found among the contents of the bucket which contained both Wheeler's and Miller's fingerprints. While Wheeler was not present at the barn when the bucket was discovered, the evidence links him and Miller inexplicably to it and its contents. Notably, Wheeler was observed in his tack room on May 13, 1987, with an injectable type syringe. Following Mr. Boyd's discovery, the state steward was notified, and the horses Wheeler had entered in the eleventh and twelfth races, "Saint Shining" and "The Game Time," respectively, were scratched on suspicion that they may be under the influence of a narcotic. Subsequently, the urine samples that had been taken from "OJ's Diamond" following its win on May 13, 1987, from "Makeaduckdance" following its win on May 14, 1987, and from "Mr. Tony B. Tuff", "Saint Shining" and "The Game Time", following the discovery of the bucket on May 15, 1987, were analyzed. Upon analysis, the urine samples taken from each horse proved positive for the presence of Buprenorphine, a narcotic drug. Buprenorphine is a synthetic morphine derivative which, in low dosage, has a stimulatory effect on animals. In such doses, the drug will cause a horse to exceed its natural running ability. At no time did Wheeler or any respondent offer any proof that the subject drugs were possessed or administered under the authority of a prescription issued by a physician or veterinarian, nor did they notify the state steward that such substances would be upon the association's premises.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department enter a final order as follows: Revoking Wheeler's trainer and horse owner license number 0292781. Sustaining the suspension of Miller's owner license number 0303824, and suspending such license for the period commencing on the date of its emergency suspension until the date of the final order entered herein. Redistributing the purses awarded in the Laddie and Lassie Stakes finals according to revised racing results based on the disqualification of "OJ's Diamond" and "Makeaduckdance." DONE AND ENTERED in Tallahassee, Leon County, Florida, this 30th day of September, 1988. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1050 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of September, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NOs. 88-0993, 88-1335, 88-1336, 88-1337, 88-1338 Petitioner's proposed findings of fact are addressed as follows: Addressed in paragraph 1. Addressed in paragraphs 3-6 and 10. 2(sic)-4. Addressed in paragraphs 12 and 13. Addressed in paragraphs 7 and 8. Addressed in paragraph 9. Addressed in paragraphs 9 and 10. Addressed in paragraph 14. COPIES FURNISHED: W. Douglas Moody, Esquire Deputy General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007 Norman Rose, Esquire Attorney for Grover C. Wheeler and Gaylord Huenfeld Radice Corporate Center 800 Corporate Drive Suite 224 For Lauderdale, Florida 33334 Robert L. Miller, Esquire Post Office Box 3611 Plant City, Florida 34289 William W. McKibbin 4603 Northwest 6th Street Gainesville, Florida 32609 Van B. Poole, Secretary Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000 Billy Vessel, Director Pari-Mutual Wagering 1350 Northwest 12th Avenue Room 332 Miami, Florida 33136-2169 Joseph A. Sole, Esquire General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1000
The Issue The Petitioner has accused the Respondent, Vaz Rolando Street, with a violation of Rule 7E-1.06(11)(a), Florida Administrative Code which reads: a) The ruining of a horse in a race with any narcotic, stimulant, depressant or local anesthetic is prohibited. If the stewards shall find that any narcotic, stimulant, depressant or local anesthetic has been administered or attempted to be administered, internally or externally, to a horse before a race, such stewards shall impose such punish- ment and take such other action as they may deem proper under any of the rules, including reference to the Division, against every person found by them to have administered, or to have attempted to administer, or to have caused to be administered, or to have caused an attempt to administer, or to have conspired with another person to administer, such narcotic, stimulant, depressant or local anesthetic. If the Division laboratory shall find a positive identification of any such medication, such finding shall constitute prima facie evidence that such horse raced with the medication in its system. Under the accusation, the Respondent is made responsible pursuant to the provisions of Rule 7E-1.18(3), Florida Administrative Code, which indicates that, "The trainer shall he responsible for, and be the insurer of the conditions of the horses he enters. Trainers are presumed to know the rules of the Division." Specifically, Respondent Street is accused under facts that allege that on November 15, 1978, the horse, Turn To Chance, trained by the Respondent, did race in the sixth race at Tropical Park, Inc., finishing in the first position. Subsequent to the race, and on the same date, a urine specimen was taken from the horse, Turn To Chance, and assigned sample number S90559A and the specimen was allegedly analyzed by the Petitioner's laboratory. It is further alleged that on February 13, 1979, the Division of Pari-Mutuel Wagering laboratory reported the results of the test. That report showed that the urine sample contained Despropionyl Fentanyl, a narcotic.
Findings Of Fact This cause comes on for consideration based upon a Notice to Show Cause (Administrative Complaint) filed by the Petitioner, State of Florida, Department of Business Regulation, Division of Pari-Mutuel Wagering, against Vaz Rolando Street. At all times pertinent to the Administrative Complaint, Vaz Rolando Street was the holder of license No. K-2282 issued by the Petitioner to the Respondent, Vaz Rolando Street, to operate as a horse trainer (authorized agent) for horses racing at the various race tracks located in the State of Florida. The Petitioner, State of Florida, Department of Business Regulation, Division of Pari-Mutuel Wagering, is an agent of the State of Florida charged with the duty of the regulation of, among other things, the matters pertaining to thoroughbred horse racing in the State of Florida. The authority for such regulation is found in Chapter 550, Florida Statutes, and those rules promulgated to enforce the provisions of that chapter. Included in the body are Rules 7E-1.06(11)(a) and 7E-1.18(3), Florida Administrative Code, alluded to in the issue statement of this Recommended Order. Those rules as set out in the issue statement shall serve as a basis for determining the facts and reaching the legal conclusions necessary to formulate a decision in this matter and official recognition is taken of the aforementioned rules. The facts in this case show that the Respondent, Vaz Rolando Street, was operating in his capacity as horse trainer, on November 15, 1978, at Tropical Park, Inc., located in the State of Florida. On that date, a horse for which he was the trainer, namely, Turn To Chance, ran in the sixth race and finished in first place. The post time for that race was 3:21 p.m. and subsequent to the race, the horse was taken to the detention barn at 3:38 p.m. for purposes of obtaining a urine sample. This sample was assigned specimen number S09559A. Subsequently, the sample was subjected to a series of analytical tests and the tests revealed that the urine sample contained Despropionyl Fentanyl, which is classified as a derivative of Fentanyl, a narcotic. The narcotic, Fentanyl, metabolizes to become the substance, Despropionyl Fentanyl, a central nervous system stimulant in horses. The trade name of Fentanyl is Sublimaze. The circumstances of the race event and the subsequent testing, show that the horse, Turn To Chance, was running under the influence of Despropionyl Fentanyl when he raced in the sixth race at Tropical Park, Inc., on November 15, 1978, and finished in first position. During the course of the hearing, no testimony was given concerning the Respondent, knowledge of the fact that his horse, Turn to Chance, was competing while under the influence of Despropionyl Fentanyl.
Recommendation It is recommended that Respondent, Vaz Rolando Street, have his license, No. K-2282, suspended for a period of one (1) year in view of the violations established through this Notice to Show Cause. DONE AND ENTERED this 28th day of August, 1979, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: W. S. Frates, Esquire Frates, Floyd, Pearson, Stewart, Richman and Greer, P.A. One Biscayne Tower, 25th Floor Miami, Florida 33131 David M. Maloney, Esquire Staff Attorney Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Mr. Vaz Rolando Street 261 Hibiscus Drive Apartment No. 6 Miami Springs, Florida 33166
The Issue The Petitioner has accused the Respondent, Francis Clifford Joyce, with a violation of Rule 7E-1.06(11)(a), Florida Administrative Code, which reads: a) The running of a horse in a race with any narcotic, stimulant, depressant or local anesthetic is prohibited. If the stewards shall find that any narcotic, stimulant, depressant or local anesthetic has been administered or attempted to be administered, internally or externally, to a horse before a race, such stewards shall impose such punishment and take such other action as they may deem proper under any of the rules, including reference to the Division, against every person found by them to have administered, or to have attempted to administer, or to have caused to be administered, or to have caused an attempt to to administer, or to have conspired with another person to administer, such narcotic, stimulant, depressant or local anesthetic. If the Division laboratory shall find a positive identification of any such medi- cation, such finding shall constitute prima facie evidence that such horse raced with the medication in its system. Under the accusation, the Respondent is made responsible pursuant to the provisions of Rule 7E-1.18(3), Florida Administrative Code, which indicates that "The trainer shall he responsible for, and be the insurer of the conditions of the horses he enters. Trainers are presumed to know the rules of the Division." Specifically, Respondent Joyce is accused under facts that allege that on October 16, 1978, the horse, Hawaiian Gardens, trained by the Respondent did race in the Second (2nd) race at Calder race course, finishing in the first (1st) position. Subsequent to the race on the same date, a urine specimen was taken from the horse, Hawaiian Gardens, and assigned sample number S 08484 A, and that specimen was allegedly analyzed by the Petitioner's laboratory. It is further alleged that on December 22, 1978, the Division of Pari-Mutuel Wagering laboratory reported the results of a test and that report showed that the urine sample contained Despropionyl Fentanyl, which is classified as a derivative of Fentanyl, a narcotic compound.
Findings Of Fact This cause comes on for consideration based upon a Notice to Show Cause (Administrative Complaint) filed by the Petitioner, State of Florida, Department of Business Regulation, Division of Pari-Mutuel Wagering, against Francis Clifford Joyce. At all times pertinent to the Administrative Complaint, Francis Clifford Joyce was the holder of license Nos. K-4547, K-4201 and K-2575 issued by the Petitioner to the Respondent, Francis Clifford Joyce, to operate as a horse trainer for horses racing at the various race tracks located in the State of Florida. The Petitioner, State of Florida, Department of Business Regulation, Division of Pari-Mutuel Wagering, is an agency of the State of Florida charged with the duty of the regulation of among other things, the matters pertaining to thoroughbred horse racing in the State of Florida. The authority for such regulation is found in Chapter 550, Florida Statutes, and those rules promulgated to enforce the provisions of that chapter. Included in the body of rules are Rules 7E-1.00(11)(a) and 7E-1.18(3), Florida Administrative Code, alluded to in the issue statement of this Recommended Order. These rules as set out in the issue statement shall serve as a basis for determining the facts and reaching the legal conclusions necessary to formulate a decision in this matter and official recognition is taken of the aforementioned rules. The facts in this case reveal that the Respondent, Francis Clifford Joyce, was operating in his capacity as a horse trainer on October 16, 1978, at the Calder race course in Broward County, Florida. On that date, a horse for which he was the trainer, named Hawaiian Gardens, ran in the second race and finished in first place. Prior to the race, the horse, Hawaiian Gardens, had been in the custody and control of the Respondent in the sense that the horse was in the presence of the Respondent before the race. The horse was treated in the morning prior to the race by medications, ACTH, Steroids, Lasix and for Myopathy, as shown by the Petitioner's Exhibit No. 5 admitted into evidence, which is a copy of the invoice of the treating veterinarian, Carl J. Meyer, D.V.M. The first of the medications was given around eight o'clock and further medication was given around nine or nine thirty and that medication was Lasix, which is a substance given for horses who have tendencies to bleed. Around eleven thirty or twelve o'clock an injection was given by Dr. Meyer for a condition which Dr. Meyer later described as Myopathy. Joyce saw the injection administered but did not question Dr. Meyer about what was in the injection. The second race occurred around 1:15 p.m. and, subsequent to the race, Hawaiian Gardens was taken to the detention barn for purposes of taking a urine sample for testing to detect any narcotics. The horse entered the area of the detention barn around 2:00 p.m. The horse started a cooling down period and walk-off around 2:05 p.m. and was back in the stall at 2:25 p.m., at which point the urine sample was taken and the horse was out of the detention barn at 2:30 p.m. The next day, on October 17, 1978, the Respondent inquired of Dr. Meyer about the previous day's treatment for Hawaiian Gardens. Dr. Meyer replied that he gave the horse a treatment for Myopathy, attention to the horse's nervous system. Joyce made no further inquiry of Meyer about the treatment for Myopathy. The urine sample of the horse, Hawaiian Gardens, was examined by a series of tests and the urine sample revealed a positive identification of a substance known as Despropionyl Fentanyl, which is classified as a derivative of Fentanyl Citrate, a narcotic. This particular narcotic, Fentanyl Citrate, metabolizes to become Despropionyl Fentanyl, a central nervous system stimulant in horses. The trade name for Fentanyl Citrate is Sublimaze. Under the circumstances, it is clear that the horse, Hawaiian Gardens, had run in the second race at Calder race course on October 16, 1978, at a time the horse had the substance, Despropionyl Fentanyl, in its system and this had resulted from Dr. Meyer's injection of Sublimaze around eleven thirty or twelve o'clock on October 16, 1978, which he fraudulently called a treatment for Myopathy. Joyce had no knowledge of Meyer's intentions nor the act of injecting the horse with Sublimaze.
Recommendation It is recommended that the case against the Respondent, Francis Clifford Joyce, related to the incident on October 16, 1978, involving the horse, Hawaiian Gardens, be DISMISSED. DONE AND ENTERED this 23rd day of August, 1979, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: S. Frates, Esquire Frates, Floyd, Pearson, Stewart, Richman & Greer, P.A. One Biscayne Boulevard, 25th Floor Miami, Florida 33131 David M. Maloney, Esquire Staff Attorney Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Mr. Francis Clifford Joyce 1015 South 17th Avenue Hollywood, Florida 33020 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF BUSINESS REGULATION STATE OF FLORIDA, DEPARTMENT OF BUSINESS REGULATION, DIVISION OF PARI-MUTUEL WAGERING, Petitioner, vs. CASE NO. 79-227 FRANCIS CLIFFORD JOYCE, Respondent. /
The Issue The Petitioner has accused the Respondent, Frank Rudolph Solimena, with a violation of Rule 7E-1.06(11)(a), Florida Administrative Code, which reads: The running of a horse in a race with any narcotic, stimulant, depressant or local anesthetic is prohibited. If the stewards shall find that any narcotic, stimulant, depressant or local anesthetic has been administered or attempted to be administered, internally or externally, to a horse before a race, such stewards shall impose such punishment and take such other action as they may deem proper under any of the rules, including reference to the Division, against every person found by them to have administered, or to have attempted to administer, or to have caused to be administered, or to have caused an attempt to administer, or to have conspired with another person to administer, such narcotic, stimulant, depressant or local anesthetic. If the Division laboratory shall find a positive identification of such medication, such finding shall constitute prima facie evidence that such horse raced with the medication in its system. Under the accusation, the Respondent is made responsible pursuant to the provisions of Rule 7E-1.18(3), Florida Administrative Code, referred to herein as the absolute insurer's rule, which provides that: The trainer shall be responsible for, and be the insurer of the condition of the horses he enters. Trainers are presumed to know the rules of the Division. Specifically, Respondent Solimena is accused under facts that allege that on December 4, 1978 a horse trained by the Respondent was entered and ran in the second race at Tropical Park, Inc. (at Calder Race Couse). Subsequent to the race a urine specimen was taken from the horse and the specimen was analyzed by the Petitioner's laboratory. It is further alleged that the Division of Pari- Mutuel Wagering laboratory reported the results of the test and that the report showed that the urine sample contained Despropionyl Fentanyl, which is classified as a derivative of Fentanyl, a narcotic compound.
Findings Of Fact This cause comes on for consideration based upon a Notice to Show Cause (Administrative Complaint) filed by the Petitioner, State of Florida, Department of Business Regulation, Division of Pari-Mutuel Wagering, against Frank Rudolph Solimena. At all times pertinent to the Notice to Show Cause, Frank Rudolph Solimena was the holder of license Nos. K-00257 and 5-00863, issued by the Petitioner to the Respondent, Frank Rudolph Solimena, enabling Solimena to operate as horse trainer and horse owner, respectively, at the several race tracks located in the State of Florida. The Petitioner, State of Florida, Department of Business Regulation, Division of Pari-Mutuel Wagering, is an agency of the State of Florida charged with the duty of the regulation of, among other things, the matters pertaining to thoroughbred horse racing in the State of Florida. The authority for such regulation is found in Chapter 550, Florida Statutes, and those rules promulgated to enforce the provisions of that chapter. Within that body of rules, are Rules 7E-1.06(11)(a) and 7E-1.18(3), Florida Administrative Code, alluded to in the issues statement of this Recommended Order. Those rules as set out in the issues statement shall serve as a basis for determining the facts and reaching the legal conclusions necessary to formulate a decision in this matter and official recognition is taken of the aforementioned rules. The facts in this case show that the Respondent, Frank Rudolph Solimena, was acting as a horse trainer on December 4, 1978, at Tropical Park, Inc., in Florida. On that date, Carpe Diem, a horse trained by the Respondent, ran in the second race and finished in first position. Following the race, and on the same date, a urine specimen was taken from the horse, Carpe Diem. That urine specimen was subsequently analyzed through a series of tests and the test directed to the urine sample revealed a positive identification of a substance known as Dispropionyl Fentanyl, which is classified as a derivative of Fentanyl, a narcotic. The process which occurred in Carpe Diem after he received the Fentanyl, was that the Fentanyl was metabolized in the horse's system to become Dispropionyl Fentanyl, and that latter substance acted as a central nervous system stimulant in the horse during the course of the race. The narcotic, Fentanyl, carries the trade name, Sublimaze. The horse referred to above was under the care and treatment of Carl J. Meyer, D.V.M., on the date of the race in question. In addition to treating this horse that is the subject of this complaint, Dr. Meyer had treated other horses for which the Respondent was the trainer, beginning in 1976 and continuing through December, 1978. One of the conditions for which the disputed horse and other horses trained by the Respondent reportedly received treatment was a condition described by Dr. Meyer as Myopathy. 1/ This treatment form was administered to Carpe Diem on the date of the disputed race event. According to Dr. Meyer, Myopathy is a treatment for muscle soreness and is a type acupuncture in which needles are injected at pressure points over the sore muscles and authorized medications are injected into those muscle areas, to include ACTH, Stroids and Lasix. When the Respondent received one of the billing statements from Dr. Meyer which indicated that horses that were being trained by the Respondent had been treated for Myopathy, the Respondent inquired of Dr. Meyer what Myopathy treatments consisted of. Dr. Meyer at that point told the Respondent that you take a needle and put it in certain pressure points in the muscle to relieve bursitis and/or pressure. When questioned in the course of the hearing about further details of the treatment for Myopathy, Dr. Meyer was unable to give a satisfactory explanation of the origins of the treatment for Myopathy and literature related to that treatment which might have been published through research in veterinary medicine. Within the same time frame that Dr. Meyer claimed to be treating the subject horse for Myopathy, he had purchased the substance, Sublimaze, and by his testimony stated that this narcotic had been used on horses other than the one involved in this accusation. The use in the unrelated group of horses was as a pre-anesthetic agent and to treat colic conditions. He claimed to use 18 milligrams as a pre-anesthetic dose and as much as 25 milligrams over a period of time to control the colic condition. The utilization of Sublimaze as a pre-anesthetic agent and for treatment for colic was disputed in the course of the bearing by the testimony of Dr. George Maylin, D.V.M., who also has a Ph.D. in pharmacology. At the time Dr. Maylin gave his testimony, he was an associate professor of toxicology at the New York State College of Veterinary Medicine, Cornell University, Ithica, New York. Dr. Maylin has done extensive research on the effect of Sublimaze as a pre-anesthetic agent and concludes that it is not a predictable anesthetic agent, and that a 10 milligram dosage would not have a desired effect in the use of pre-anesthetic cases. In Dr. Maylin's opinion, 50 milligrams would be the indicated amount. In addition, Dr. Maylin's extensive testing of Sublimaze in a colic model situation pointed out the ineffectiveness of Sublimaze as an analgesic in those colic cases. Finally, Dr. Maylin does not believe that 25 milligrams of Sublimaze over an extended period of time could be effective in treating the colic condition. Other trainers had horses which had been treated by Dr. Meyer around the same time period as the horse of the Respondent, which is the subject of this hearing. Those trainers are Ohayneo Reyes and Edward E. Plesa. Both Reyes and Plesa questioned Dr. Meyer on the subject of Meyer injecting Sublimaze in their race horses. Those questions were asked following accusations placed against those trainers for violations similar to those in the current case of the Respondent. The answers given to Reyes and Plesa by Dr. Meyer indicated that he had in fact injected the horses with Sublimaze, but he told them not to worry because the substance could not be detected. Dr. Meyer also testified in the course of the hearing that he had placed wagers on some of the horses being treated for Myopathy. An analysis of the evidence leads to the factual conclusion that Dr. Meyer infused Carpe Diem, for which the Respondent stands accused through this Notice to Show Cause, with Sublimaze, otherwise identified as Fentanyl, and that he gave those injections under the guise of a treatment for Myopathy, when in fact the so-called treatment for Myopathy was a ruse to enable Dr. Meyer to administer the Sublimaze. This act by Dr. Meyer directed to the horse of the Respondent involved in this accusation, was unknown to the Respondent at the time the injection was administered and nothing that had transpired prior to this placed Respondent in the position of having reason to believe that Dr. Meyer was pursuing this course of conduct. In summary, although the horse in question ran in the subject race while under the effects of Fentanyl, metabolized to become Dispropionyl Fentanyl, it was not through an act of the Respondent.
Recommendation It is recommended that the action through the Notice to Show Cause against the Respondent, Frank Rudolph Solimena, be DISMISSED. DONE AND ENTERED this 10th day of September, 1979, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32381 (904) 488-9675
The Issue Whether Petitioner proved by clear and convincing evidence that Respondent is guilty of the offenses alleged in the Order of Summary Suspension and in the Administrative Complaint.
Findings Of Fact The Division is the agency of the State of Florida charged with regulating pari-mutuel wagering pursuant to Chapter 550, Florida Statutes. At all times relevant to this proceeding, Respondent held a pari-mutuel wagering trainer/thoroughbred license number 15043-1021 issued by the Division. Respondent has been a thoroughbred racehorse trainer for approximately 30 years. Excluding the allegations pertaining to this proceeding, Respondent has had only two prior disciplinary actions taken against his license by the Division. Each of the prior disciplinary actions involved the post-race detection of a drug in a horse trained by Respondent. Although the drug at issue in the prior disciplinary proceedings cannot be in a horse’s system during a race, those drugs can legally be administered to race horses for therapeutic use. Neither violation resulted in a suspension of Respondent’s license. At all times relevant to this proceeding, Respondent trained horses that raced at Calder Race Course in Dade County, Florida. It is undisputed that at all times relevant to this proceeding, Respondent was the trainer of record for the race horses “Red Nation,” “Shea Stadium,” and “Mi Corredora.” As the trainer of record, Respondent was the absolute insurer for the condition of his horses.4 RED NATION It is undisputed that Red Nation was entered in the seventh race at Calder on May 17, 2008, and finished the race in first place. Following the seventh race at Calder on May 17, 2008, a urine sample and a blood sample were taken from Red Nation.5 Urine sample 407762 was collected on May 17, 2008, and processed in accordance with established procedures. Urine sample 407762 was analyzed by the University of Florida Racing Laboratory (the Lab), which is retained by the Division to test urine and blood samples from animals racing at pari-mutuel facilities in Florida.6 The Lab found that the sample contained Despropionyl Fentanyl (the subject metabolite derivative), which is a metabolite derivative of Fentanyl (the subject drug). The subject metabolite derivative is the substance that remains in the urine after the horse’s body has processed the subject drug. The sample concentration of the subject metabolite derivative was 2.8 nanograms per milliliter. SHEA STADIUM It is undisputed that Shea Stadium was entered in the sixth race at Calder on November 20, 2008, and finished the race in second place. Following the sixth race at Calder on November 20, 2008, a urine sample and a blood sample were taken from Shea Stadium. Urine sample 423241 was collected on November 20, 2008, and processed in accordance with established procedures. Urine sample 423241 was analyzed by the Lab. The Lab found that the sample contained the subject metabolite derivative. The sample concentration of the subject metabolite derivative was 2.8 nanograms per milliliter. MI CORREDORA It is undisputed that Mi Corredora was entered in the third race at Calder on November 22, 2008, and finished the race in first place. Following the third race at Calder on November 22, 2008, a urine sample and a blood sample were taken from Mi Corredora. Urine sample 424032 was collected on November 20, 2008, and processed in accordance with established procedures. Urine sample 424032 was analyzed by the Lab. The Lab found that the sample contained the subject metabolite derivative. The sample concentration of the subject metabolite derivative was 5.7 nanograms per milliliter. SUMMARY SUSPENSION On February 4, 2009, the Division issued an Order of Summary Suspension of Respondent’s licensure pursuant to Section 550.2415(3(b), Florida Statutes. The Division contends in the Order of Summary Suspension and in the Administrative Complaint that urine sample 407762 was taken from Red Nation, that urine sample 423241 was taken from Shea Stadium, and that urine sample 424032 was taken from Mi Corredora FENTANYL The subject drug is a narcotic analgesic. The effect of the subject drug on a horse is dose dependent. A lower dose, 8 milligrams or less, stimulates a horse and makes the horse run faster. The subject drug was the drug of choice in the 70’s and early 80’s for “hopping” a horse to make it run faster. A dose above 8 milligrams causes the horse to lose coordination, which slows the running of the horse. After testing became more sophisticated, the subject drug lost its popularity. The subject drug has been designated by the Association of Racing Commissioners International as a Class 1 drug. Class 1 drugs have the highest potential to impact the performance of a horse in a race and they have no therapeutic value in a racehorse. The subject drug is not approved for use in horses in the United States by the U.S. Food and Drug Administration. A nanogram is one-thousandth of a microgram. A microgram is one-thousandth of a milligram. There was no evidence as to whether the levels of the subject metabolite derivative detected in the subject urine samples would have had an impact to the performances of these racehorses in the subject races. The testimony of Dr. Sams established that all appropriate protocols were followed in testing the three urine samples at issue in this proceeding. The testing procedure used by the Lab is considered to be, as phrased by Dr. Sams, the gold standard for the identification of drugs in urine. The presence of the subject metabolite derivative in each of the three urine samples at issue in this proceeding established that the subject drug had been administered to each horse from which one of the subject samples had been drawn. The Lab thereafter submitted a report to the Division reflecting that the three urine samples at issue in this procedure had tested positive for the subject metabolite derivative. The report identified each sample only by the sample number. The Lab had no information to identify a sample by the name of the horse or trainer. POST-RACE SAMPLING Florida Administrative Code Rule 61D-6005 governs the post-race sampling process and provides, in relevant part, as follows: The winner of every race and other such racing animal participants the stewards, judges, division, or track veterinarian of the meet designate, shall be sent immediately after the race to the detention enclosure for examination by the authorized representative of the division and for the taking of urine, blood or other such samples as shall be directed for the monitoring and detection of both permissible and impermissible substances. . . . * * * The owner, trainer of record, groom, or other authorized person shall be (present in the testing enclosure) able to witness when urine, blood or other specimens are taken from that person’s racing animal. The specimen shall be sealed in its container, assigned an official sample number which is affixed to the specimen container, and the correspondingly numbered information portion of the sample tag shall be detached and signed by the owner, trainer, groom, or the authorized person as a witness to the taking and sealing of the specimen. The racing animal and authorized person shall remain in the detention enclosure until the sample tag is signed. Said specimens shall be maintained in such a manner as to preserve the integrity of the specimen. Specimen containers shall be of the disposable type and shall not be reused. Only those persons stated in subsection (3) of this rule shall be admitted at any time to the detention enclosure except the division staff immediately in charge of such work, the stewards or judges, or such other persons as shall be authorized by the director or the division veterinarian. * * * (6) All specimens taken by or under direction of the division veterinarian or other authorized representative of the division shall be delivered to the laboratory under contract with the division for official analysis. Each specimen shall be marked by number and date and also bear any information essential for its proper analysis; however, the identity of the racing animal from which the specimen was taken or the identity of its owner, trainer, jockey, stable, or kennel shall not be revealed to the laboratory staff until official analysis of the specimen is complete. . . . Ms. Neira is an investigator who has been employed by the Division for over 20 years. In discharging her official responsibilities, Ms. Neira has observed the post-race sampling process at Calder. Ms. Neira was not present when any of the subject samples were taken and she is not the custodian of the records maintained at by the Division at Calder. Those records are taken by persons employed by the Division. Those records are maintained in a secure location that is under the supervision of a Division employee. Ms. Neira has access to those records and she utilizes those records in the discharge of her official duties. After receiving the report from the Lab pertaining to the subject urine samples, Ms. Neira followed standard investigative protocol. Ms. Neira went to the Division’s South Florida Regional Office at the North Broward Regional Service Center in Fort Lauderdale, Florida (South Region) offices where the urine specimen cards (Specimen Cards) are kept in a locked file cabinet. The Specimen Cards collected at Calder are maintained separately from Specimen Cards taken from other licensed pari-mutuel facilities. The Specimen Cards for Calder are filed by the date the sample was taken. Ms. Neira located each of the Specimen Cards at issue in this proceeding using the specimen numbers. She thereafter matched each specimen number identified as being positive by the Lab report to that specimen number’s Specimen Card. While Ms. Neira is not the records custodian for the records maintained at the South Region Office, she has access to and utilizes those records in the discharge of her official duties. Each Specimen Card at issue in this proceeding (the Division’s Exhibits 3, 6 and 9, respectively) indicates the date the sample was taken, the name of the animal, its color and age, its race, its order of finish in the race, its owner, its trainer, the name of the person taking the urine sample, the names of the witnesses (including the owner’s witness), and the horse's tattoo number (taken from the horse’s upper inside lip). Each Specimen Card is a state record maintained in the regular course of business. The subject Specimen Cards established that urine sample 407762 was taken from Red Nation following the seventh race at Calder on May 17, 2008; that urine sample 423241 was taken from Shea Stadium following the sixth race at Calder on November 20, 2008; and that urine sample 424032 was taken from Mi Corredora following the third race at Calder on November 22, 2008. A form styled “State Detention Area Security Log” (Security Log) is kept at Calder in the regular course of business. Those Security Logs reflect the dates and times people and horses enter and exit the secure State Detention Area (the Detention Area). The Security Logs are completed by Division employees and are maintained in a secure location at Calder that is under the supervision of Division employees. Ms. Neira has access to those Security Logs in the discharge of her official duties. A document styled “Daily Record of Sample Collection for Race Horses” (Sample Record) is also kept at Calder in the ordinary course of business. Sample Records are completed by Division employees and are maintained in a secure location at Calder that is under the supervision of Division employees. Ms. Neira has access to the Sample Records in the discharge of her official duties. Following each race, the horses that must be tested are tagged by a veterinarian’s assistant (vet assistant) who tags the animal with an identifying tag and escorts the animal and the trainer’s representative7 to the Detention Area. After a cool-down period, the vet assistant takes the urine sample from the horse and the state veterinarian takes the blood sample from the animal. The state veterinarian and the vet assistant are employees of the Division. The urine sample and the blood sample are taken in the presence of witnesses, one of whom is the trainer’s representative. At that point the Specimen Card discussed above is filled out. The trainer’s’ representative signs the specimen card. The horse and the trainer’s representative are then released from the Detention Area. The Security Log for May 17, 2008 (the Division’s Exhibit 2), reflects that Andrew J. Mitchell entered the Detention Area with Red Nation following the seventh race at 3:10 p.m. and that he left the Detention Area with Red Nation at 3:50 p.m. The subject Sample Record (the Division’s Exhibit 4) reflects that Red Nation’s urine sample and blood sample were taken on that date at 3:50 p.m. Red Nation was identified by name and by tattoo number. The Sample Record reflects that the specimen number assigned these samples was 407762. On May 17, 2008, Mr. Mitchell acted as Respondent’s representative. Mr. Mitchell signed the Specimen Card admitted into evidence as the Division’s Exhibit 3 as the trainer’s representative. Urine sample 407762 was taken from Red Nation on May 17, 2008, following the seventh race at Calder. The Security Log for November 20, 2008 (the Division’s Exhibit 7) reflects that Victor H. Flores entered the Detention Area with Shea Stadium following the sixth race at 3:00 p.m. and that he left the Detention Area with Shea Stadium at 3:40 p.m. The Sample Record (the Division’s Exhibit 9) reflects that Shea Stadium’s urine sample and blood sample were taken on that date at 3:50 p.m. Shea Stadium was identified by name and by tattoo number. The Sample Record reflects that the specimen number assigned these samples was 423241. On November 20, 2008, Mr. Flores acted as Respondent’s representative. Mr. Flores signed the Specimen Card admitted into evidence as the Division’s Exhibit 8. Urine sample 423241 was taken from Shea Stadium on November 20, 2008, following the sixth race at Calder. The Security Log for November 22, 2008 (the Division’s Exhibit 12) reflects that Victor H. Flores entered the Detention Area with Mi Corredora following the third race at 1:30 p.m. and that he left the Detention Area with Mi Corredora at 2:00 p.m. The Sample Record (the Division’s Exhibit 14) reflects that Mi Corredora’s urine sample and blood sample were taken on that date at 2:00 p.m. Mi Corredora was identified by name and by tattoo number. The Sample Record reflects that the specimen number assigned these samples was 424032. On November 22, 2008, Mr. Flores acted as Respondent’s representative. Mr. Flores signed the Specimen Card admitted into evidence as the Division’s Exhibit 13. Urine sample 424032 was taken from Mi Corredora on November 22, 2008, following the third race at Calder. Each of the urine samples at issue in this proceeding was subjected to a split testing procedure as required by Section 550.2415(1)(a), Florida Statutes.
Recommendation Based on the foregoing findings of fact and conclusions of Law, it is RECOMMENDED that Petitioner enter a final order that adopts the Findings of Fact and Conclusions of Law set forth herein. It is, further, RECOMMENDED that the Final Order uphold the Order of Summary Suspension. It is, further, RECOMMENDED that the Final Order find Respondent guilty of the three counts alleged in the Administrative Complaint; impose against him an administrative fine in the amount of $1,000.00 per count (for a total of $3,000.00); suspend his licensure for a period of one year from the date of the emergency suspension; and require him to return any purse won by the horses at issue for the races at issue. DONE AND ENTERED this 14th day of May, 2009, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of May, 2009.
The Issue Should Petitioner impose discipline against Respondent's Pari-Mutuel Wagering Occupational License, and other relief for alleged violation of Section 550.2415(1)(a), Florida Statutes (2005)?
Findings Of Fact Between May 24, 2005 and June 18, 2005, Respondent held a Pari-Mutuel Wagering Occupational License, number 1102016- 1021, issued by Petitioner. On May 25, 2005, Respondent was the trainer of record of a racing greyhound named "Lips Are Sealed." On May 25, 2005, "Lips Are Sealed" was entered, and finished first (1st), in the second (2nd) race of the performance at Pensacola Greyhound Track. Immediately following the second (2nd) race of the performance at Pensacola Greyhound Track on May 25, 2005, urine sample number 129287 was collected from "Lips Are Sealed." The University of Florida Racing Laboratory tested urine sample number 129287 and found it to contain Benzoylecgonine (a metabolite of Cocaine), and/or a derivative thereof. Benzoylecgonine (a metabolite of Cocaine), and/or a derivative thereof, is an impermissible substance, that was carried in the body of "Lips Are Sealed" while participating in the second (2nd) race of the performance at Pensacola Greyhound Track on May 25, 2005. On June 1, 2005, Respondent was the trainer of record of a racing greyhound named "Red Eyed Fever." On June 1, 2005, "Red Eyed Fever" was entered, and finished first (1st), in the fourth (4th) race of the performance at Pensacola Greyhound Track. Immediately following the fourth (4th) race of the performance at Pensacola Greyhound Track on June 1, 2005, urine sample number 129348 was collected from "Red Eyed Fever." The University of Florida Racing Laboratory tested urine sample number 129348 and found it to contain Benzoylecgonine (a metabolite of Cocaine), and/or a derivative thereof. Benzoylecgonine (a metabolite of Cocaine), and/or a derivative thereof, is an impermissible substance, that was carried in the body of "Red Eyed Fever" while participating in the fourth (4th) race of the performance at Pensacola Greyhound Track on June 1, 2005. On June 16, 2005, Respondent was the trainer of record of a racing greyhound named "Stubborn Kind." On June 16, 2005, "Stubborn Kind" was entered, and finished first (1st), in the first (1st) race of the performance at Pensacola Greyhound Track. Immediately after the first (1st) face of the performance at Pensacola Greyhound Track on June 16, 2005, urine sample number 129469 was collected from "Stubborn Kind." The University of Florida Racing Laboratory tested urine sample number 129469 and found it to contain Benzoylecgonine (a metabolite of Cocaine), and/or a derivative thereof. Benzoylecgonine (a metabolite of Cocaine), and/or a derivative thereof, is an impermissible substance, that was carried in the body of "Stubborn Kind" while participating in the first (1st) race of the performance at Pensacola Greyhound Track on June 16, 2005. On June 17, 2005, Respondent was the trainer of record of a racing greyhound named "Drinktil Hescute." On June 17, 2005, "Drinktil Hescute" was entered, and finished first (1st), in the fifth (5th) race of the performance at Pensacola Greyhound Track. Immediately following the fifth (5th) race of the performance at Pensacola Greyhound track on June 17, 2005, urine sample number 129479 was collected from "Drinktil Hescute." The University of Florida Racing Laboratory tested urine sample number 129479 and found it to contain Benzoylecgonine (a metabolite of Cocaine), and/or a derivative thereof. Benzoylecgonine (a metabolite of Cocaine), and/or a derivative thereof, is an impermissible substance, that was carried in the body of "Drinktill Hescute" while participating in the fifth (5th) race of the performance at Pensacola Greyhound Track on June 17, 2005.
Recommendation Upon consideration of the facts found and the conclusions of law reached, it is RECOMMENDED: That a final order be entered revoking the occupational license held by Respondent, imposing a $5,000.00 fine and requiring the return of the race purses. DONE AND ENTERED this 27th day of June, 2006, in Tallahassee, Leon County, Florida. S CHARLES C. ADAMS 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 27th day of June, 2005. COPIES FURNISHED: Stefan Thomas Hoffer, Esquire Department of Business and Professional Regulation Division of Pari-Mutuel Wagering 1940 North Monroe Street Tallahassee, Florida 32399-2202 Thomas M. Dudley, Sr. 327 Northeast 434 Street Old Town, Florida 32680 David J. Roberts, Director Division of Pari-Mutuel Wagering Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Josefina Tamayo, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202
