Findings Of Fact Clenbuterol is a performance enhancing drug. Ms. Gemmill received Clenbuterol from Dr. Griffith on the grounds of Calder Race Course, a pari-mutuel facility. Dr. Griffith caused the Clenbuterol that he gave to Ms. Gemmill to be kept on the grounds of Calder Race Course, apari-mutue1 facility.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby recommended that a Final Order be entered which adopts the findings of fact contained herein and which dismisses the charges contained in the administrative complaint. RECOMMENDED this 13th day of December, 1991, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of December, 1991.
The Issue The issues in this case are whether Respondent, Frank D. Inserra, violated Section 550.105(7), Florida Statutes (2007), as alleged in Count I of an Amended Administrative Complaint issued by Petitioner, the Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering, on October 15, 2007, and, if so, what disciplinary action should be taken against his Florida pari-mutuel wagering occupational license.
Findings Of Fact Petitioner, the Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering (hereinafter referred to as the “Division”), is an agency of the State of Florida created by Section 20.165(2)(f), Florida Statutes, and charged with the responsibility for the regulation of the pari- mutuel wagering industry pursuant to Chapter 550, Florida Statutes. Respondent, Frank D. Inserra, is, and was at the times material to this matter, the holder of a pari-mutuel occupational license, number 115731-1021, issued by the Division. On or about June 14, 2005, a Complaint was filed by Kenneth Posco against Mr. Inserra in the Circuit Court of the 17th Judicial Circuit, in and for Broward County, Florida (hereinafter referred to as the “Posco Complaint”). In relevant part, the Posco Complaint alleged the following: This is an action for damages in excess of $15,000.00, exclusive of interest and costs. At all times material hereto, Posco was and is an individual residing in Fitchburg, Massachusetts. At all times material hereto, Inserra was and is an individual residing in Broward County and is otherwise sui juris. . . . . On or about November 11, 2004, after a negotiated agreement for the purchase of certain thoroughbred racehorses was not honored by Inserra, Posco and Inserra entered into and [sic] agreement for the repayment of the funds previously forwarded by Posco to Inserra for such purchase (the ”Contract”). . . . Pursuant to the Contract, Inserra was to make certain periodic payments, in order to make full payment of the agreed upon sum of $40,186.00. Inserra has failed to make any of the periodic or final payments described in the Contract. . . . . The Contract referred to in the Posco Complaint is a settlement agreement entered into between Mr. Inserra and Mr. Posco to resolve Mr. Inserra’s failure to abide by the terms of an oral contract whereby Mr. Inserra agreed to sell four thoroughbred horses to Mr. Posco which were to be used by Mr. Posco in pari-mutuel racing. The Contract was entered into by Mr. Inserra and Mr. Posco on or about November 11, 2004. Pursuant to the Contract referred to in the Posco Complaint Mr. Inserra acknowledged, in part, the following: WHEREAS, Inserra, Seller, and Posco, as Purchaser, entered into an oral agreement for the purchase of certain horses (hereinafter “Agreement”) in which Inserra agreed to furnish four (4) total horses together with all required paperwork, in exchange for $36,750.00, prepaid by Posco; and WHEREAS, a dispute has arisen concerning the performance of Inserra under the Agreement; and WHEREAS, Inserra produced Stormin Hillbilly without the required papers (Jockey Club Registration) to allow Posco to race the horse, as anticipated by the Agreement, thus Posco has paid $3,436.00 for training fees, which he now seeks to be reimbursed as the horse has never been able to race; and WHEREAS, Inserra failed to produce any of the remaining three horses; and WHEREAS, Inserra and Posco are desirous of resolving all disputes and controversies regarding the proposed sale. NOW, THEREFORE inconsideration of the mutual covenants hereinafter set forth and other valuable consideration, the parties hereby agree as follows: Inserra shall, within [30] days, pay to Posco $16,000.00. Inserra will then, within [90] days pay to Posco $10,250.00. Inserra will then, within [120] days pay to Posco $13,936.00. . . . . When Mr. Inserra failed to live up to the terms of the settlement agreement, Mr. Posco filed the Posco Complaint. On or about January 6, 2006, Mr. Posco filed Plaintiff, Keneth [sic] Posco’s Motion for Summary Judgment. On February 8, 2006, the Motion was granted and a Judgment was entered in the Circuit Court of the 17th Judicial Circuit, in and for Broward County, Florida, against Mr. Inserra (hereinafter referred to as the “Judgment”). Mr. Inserra was ordered to pay Kenneth Posco $42,075.78. The Judgment was issued as a direct consequence of Mr. Inserra’s breach of the contract he entered into with Mr. Posco for the sale and purchase of thoroughbred racehorses in Florida, a contract which related directly to the sport of racing in pari-mutuel facilities in Florida. On June 18, 2007, the Judges/Stewards at Calder Race Course issued the following written ruling (Calder Order) against Mr. Inserra as a result of the Judgment: Judgment issued by the 17th Judicial Circuit Court in and for Broward County, Florida, on February 8th, 2006, orders Frank D. Inserra to Pay [sic] Kenneth Posco $42,075.78 plus attorney fees. This judgment has not been satisfied. Owner Frank D. Inserra, having been afforded a formal hearing before the Board of Stewards at Calder Race Course on Monday, June 18th, 2007, is suspended sixty days or until such time as the judgment is satisfied or vacated by the court. Suspension will commence on Thursday, June 21, and continue through and including Monday, August 20th, 2007. Denied access, use, and privileges of all grounds under the jurisdiction of the Florida Division of Pari-Mutuel Wagering requiring a license for admission during the term of suspension. The Calder Order was affirmed in a Final Order of the Division entered on or about August 24, 2007. As of the date of the final hearing of this matter, the obligation imposed on Mr. Inserra by the Judgment, which arose out of a transaction relating directly to the sport of racing being conducted at pari-mutuel facilities within Florida, remained unpaid.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering: Dismissing Count II of the Amended Administrative Complaint; Finding that Respondent is guilty of the violation alleged in Count I of the Amended Administrative Complaint; and Suspending Mr. Inserra’s pari-mutuel wagering occupational license for a period of not less than ten days and continuing until Mr. Inserra provides satisfactory proof that he has satisfied his outstanding financial obligation to Kenneth Posco as ordered in the Judgment. DONE AND ENTERED this 9th day of April, 2008, in Tallahassee, Tallahassee, Leon County, Florida. LARRY J. SARTIN 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 9th day of April, 2008. COPIES FURNISHED: Charles T. “Chip” Collette Assistant General Counsel Office of the General Counsel Division of Pari-Mutuel Wagering Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Frank D. Inserra 2649 Sable Palm Drive Miramar, Florida 33023 David J. Roberts, Director Division of Pari-Mutuel Wagering Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Ned Luczynski, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue This case has been bifurcated (as described more fully below). The issues in the present portion of this case are as follows: Whether Respondent, Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering (the "Division"), engaged in undue or unreasonable delay in processing Petitioner, Ft. Myers Real Estate Holdings, LLC's ("Ft. Myers"), application for a quarter horse racing permit. Whether the Division repeatedly denied Ft. Myers' application for a quarter horse racing permit. Whether the Division denied Ft. Myers' petitions for hearing for the purpose of ensuring application of the new law, effective July 1, 2010, that made quarter horse racing permit applications subject to the limitations contained in section 550.554, Florida Statutes (2010).1/
Findings Of Fact Ft. Myers is a Florida limited liability company established for the purpose of obtaining a permit to own and operate a quarter horse racing facility in the State of Florida. It is further the intent of Ft. Myers to operate as a pari-mutuel wagering facility in any fashion allowed by law. The Division is the state agency responsible for reviewing and approving applications for pari-mutuel wagering permits, including quarter horse racing facility permits. In January 2009, Ft. Myers filed an application (the "Application") seeking a permit to build and operate a quarter horse racing facility in Lee County, Florida. The Application was properly filed with the Division. On February, 13, 2009, the Division issued a deficiency letter setting forth several perceived problems with the Application. Ft. Myers submitted a response to the deficiency letter on February 18, 2009. In the response, Ft. Myers addressed each of the deficiencies. As far as can be determined, the Application was deemed complete by the Division sometime after February 18, 2009. However, Ft. Myers, thereafter, contacted the Division and asked that further action on the Application be delayed. The basis for that request was that there were some "hostile bills" against quarter horse racing filed with the Legislature, and there were some pending issues concerning a compact with the Seminole Tribe of Florida. Ft. Myers acknowledges that it requested delays in the review of the Application based upon business reasons. In conjunction with amendments relating to the Indian Gaming Compact, on May 8, 2009, the Legislature enacted Chapter 2009-170, Laws of Florida (also commonly referred to as SB 788), which authorized slot machine gaming for pari-mutuel permit holders located in Miami-Dade County. Chapter 2009-170 was filed with the Secretary of State and approved by the Governor on June 15, 2009, and states in pertinent part: Section 14. Section 550.334, Florida Statutes is amended to read: 550.334 Quarter horse racing; substitutions (2) All other provisions of this chapter, including s. 550.054, apply to, govern, and control such racing, and the same must be conducted in compliance therewith. * * * Section 19. Subsections (4) and (7) of section 551.102, Florida Statutes, are amended to read: 551.102 Definitions.—As used in this chapter, the term: (4) "Eligible facility" means any licensed pari-mutuel facility located in Miami-Dade County or Broward County . . .; any licensed pari-mutuel facility located within a county as defined in s. 125.011, provided such facility has conducted live racing for 2 consecutive calendar years immediately preceding its application for a slot machine license, pays the required license fee, and meets the other requirements of this chapter; . . . * * * Section 26. Sections 1 through 3 of this act and this section shall take effect upon becoming law. Sections 4 through 25 shall take effect only if the Governor and an authorized representative of the Seminole Tribe of Florida execute an Indian Gaming Compact pursuant to the Indian Gaming Regulatory Act of 1988 and requirements of this act, only if the compact is ratified by the Legislature, and only if the compact is approved or deemed approved, and not voided pursuant to the terms of this act, by the Department of the Interior, and such sections take effect on the date that the approved compact is published in the Federal Register. Section 14 of the legislation essentially applied a provision to quarter horse racing facilities that already applied to other pari-mutuel facilities, i.e., no new facility could be approved for a location within 100 miles of an existing pari-mutuel facility. The effective date of this legislation, as evidenced in section 26, was conditioned on the execution and approval of a gaming compact between the State of Florida and the Seminole Tribe of Florida. The compacts were subsequently executed by the Governor and the Seminole Tribe of Florida on August 28, 2009, and August 31, 2009, however, they were not ratified by the Legislature, and, thus, they were specifically rendered void as was the remainder of Chapter 2009-170.2/ In consideration of SB 788 and certain business negotiations with another permit holder in Lee County, Ft. Myers amended the Application by changing the location of the project to Florida City, Dade County, Florida. In an amended permit application dated July 27, 2009, and filed with the Division on August 12, 2009, Ft. Myers made the following changes to its initial proposal: Changes were made to the ownership interest of the project; A revised business plan, revised financial projections for year one of operations, and a revised internal organizational chart were included; The proposed site plan was amended to reflect the move to Florida City; and A new construction time line was submitted. Meanwhile, several other entities submitted applications seeking to construct and operate quarter horse racing facilities in different venues around the state. Quarter horse permits were then issued to ELH Jefferson, LLC ("ELH Jefferson"); Gretna Racing, LLC; Debary Real Estate Holdings, LLC ("Debary"); and South Marion Real Estate Holdings, LLC, between November 2008 and May 2009. Those approvals were given, in part, based on written assurances from land use attorneys that zoning and other land use approvals (necessary elements for permit approval) could be obtained after permit issuance. After the Division began issuing quarter horse racing permits, however, the Division started to realize that it may not have been requiring a sufficient showing from applicants to meet the statutory criteria for issuance of a permit under section 550.334, Florida Statutes (2008). Notably, although nine quarter horse permits were issued from September 2008 until February 2010, no quarter horse racing permit holder, without an existing facility at the time of permit issuance, had actually utilized a permit to conduct quarter horse racing. Further, both ELH Jefferson and Debary failed to obtain necessary land use approvals after permit issuance, notwithstanding land use attorney opinions that they were obtainable. The Division then began to consider around August 2009, whether it needed more evidence that the land was available for use than opinions from land use attorneys. The Division's re-appraisal began in the course of reviewing the Miami-Dade Airport's application for a quarter horse permit, which asserted that the entire airport property was available for use as a quarter horse facility. The issues associated with the Miami-Dade Airport application, along with the Division's experience that despite assurances, some permit applicants had been unable to obtain land use approvals, caused the Division to determine that it needed more evidence that the land was, in fact, available for use to ensure the statutory requirements for permit issuance were met. At about the same time the Division was re-appraising its method of reviewing permit applications, Ft. Myers decided to change the location of its proposed quarter horse facility from Lee County to Dade County, Florida. In response to the change, the Division sent Ft. Myers a deficiency letter concerning the Dade County site dated September 11, 2009. That letter set out the following pertinent deficiency items: Deficiency #1 That the location(s) where the permit will be used be "available for use." That because previous quarter horse applications have provided opinion letters from land use experts, and those sites have later proven not be to usable for the quarter horse facility, more specific information was required, i.e., The qualifications of the applicant's zoning attorney; A written statement of the attorney's grounds forming his opinion; and A copy of any application for rezoning filed with the City of Florida City, including an update from the City on the status of the application. Deficiency #2 That the location(s) where the permit will be used be "available for use." That the Letter of Intent provided by Ft. Myers is insufficient and that documentation reflecting its control over the property is required, i.e., a purchase agreement. The Division also asks for information regarding Ft. Myers' relationship with the registered owner of the site in question. Deficiency #4 That reasonable supporting evidence be provided that "substantial construction will be started within 1 year" after issuance of the permit. On November 11, 2009, Ft. Myers responded to the Dade County deficiency letter. In its response, Ft. Myers provided the Division the following information: Information about its land use attorney, Jerry B. Proctor, from the law firm Bilzin Sumberg. A letter dated September 18, 2009, from Henry Iier, City Planner for the City of Dade City. The letter indicates that the City has zoning jurisdiction over the subject property and that it allows applications for zoning changes. Tier also states that the timetable for rezoning appears reasonable. An Agreement for Purchase and Sale between Ft. Myers and an entity called Florida City 70 Acres, LLC. The agreement includes a contingency provision requiring implementation of certain provision of SB 788 passed by the 2009 Legislature. Fulfillment of those provisions was a condition precedent to Ft. Myers' commitment to purchase the property. The Division considered Ft. Myers' response to mean that it had made a decision not to provide information about its zoning request status. Had Ft. Myers submitted that information or requested additional time to gather the information, the Application would not have been denied on that basis. The Division found the contingency in the Purchase and Sale Agreement to be a significant impediment to commencement of construction within one year. In fact, the agreement was also contingent on the approval of provisions of SB 788 that may not ever be approved. As such, the agreement failed to meet the requirements for approval. Sometime during the month of December 2009, personnel from the Division contacted another quarter horse permit applicant, North Florida Racing, concerning its pending application. The Division employee advised North Florida Racing that there had been a change in "policy" at the Division concerning one aspect of the application review. Specifically, North Florida Racing was advised that their selected site would have to be proven to be "land available for use" as a quarter horse facility. They were told that the old standard of having a local zoning lawyer's opinion letter would not suffice. Rather, the applicant must show that an application for rezoning had actually been filed. It is not clear from the evidence whether North Florida Racing contacted the Division or whether the Division initiated that contact. Other than the statements in the deficiency letter, Ft. Myers was not directly contacted by anyone from the Division concerning this change in policy. On January 12, 2010, the Division issued a letter denying Ft. Myers' application for a quarter horse permit in Miami-Dade County, Florida. The denial letter provided two bases for the Division's decision: One, that the Application failed to demonstrate that the land is available for use (under its new policy); and two, that the Application failed to provide reasonable supporting evidence that substantial construction of the facility would be commenced within one year of issuance of the permit. The denial letter contained a statement concerning the process for requesting an administrative hearing on the matter. It is the position of Ft. Myers that the Division imposed unauthorized requirements on Ft. Myers' application so that it could use the new law in effect, that the Division imposed non-rule policy on Ft. Myers to delay processing of the application, and that the Division unreasonably and improperly delayed Ft. Myers' application to take advantage of the change in the law. The following Findings of Fact (22 through 45) were proffered by Ft. Myers in the furtherance of their position. Hartman and Tyner, d/b/a Mardi Gras Casino ("Hartman and Tyner"), Calder Casino and Race Course ("Calder"), and the Flagler Magic City Casino ("Flagler") are part of a coalition of South Florida pari-mutuel permitholders (collectively referred to as the "South Florida permitholders") that opposed the expansion of quarter horse racing into Miami-Dade County. Jim Greer, then chairman of the Republican Party of Florida, was a contract lobbyist for Hartman and Tyner. In May of 2008, Greer entered into a two-year contract with Hartman and Tyner that paid him $7,500 per month as a lobbyist. Charles "Chuck" Drago was the secretary of the Department of Business and Professional Regulation (the "Department"). Drago was a close friend of Greer. Drago had been the chief of police of Oveido where Mr. Greer had lived and served on the City Commission. Greer and Drago had been fundraisers for Governor Crist. Scott Ross was hired by the Department as a deputy director in April 2009. Ross was hired with assistance from Delmar Johnson, Ross' college friend, who held the position of executive director of the Republican Party of Florida. Johnson worked for Greer. Ross' responsibility included oversight of the Division. David "Dave" Roberts was the director of the Division for approximately eight years. Roberts was division director when a number of quarter horse permit applications were filed with the Division after the 2007 changes in the card room law, which allowed quarter horse racing facilities to have card games. Roberts caused the Division to develop guidelines to govern the review of the quarter horse applications. After Roberts was forced to resign, the Division modified the guidelines to require applicants to show that zoning was in place for racing before the permit was issued. Milton "Milt" Champion was named director of the Division, effective January 4, 2010. He signed the denial of Ft. Myers' quarter horse permits on January 12, 2010, after he had been on the job for eight days. Joseph Helton is an attorney employed by the Division and has served as chief legal counsel to the Division since 2002. Helton has worked as an attorney for the Division for a combined 13 to 14 years. Helton was identified by the Division as its agency representative in this proceeding. Earnest James "Jim" Barnes is employed by the Division as an Investigative Specialist II. Barnes' duties with the Division include the evaluation of applications for quarter horse permits. Barnes was involved in the processing of all quarter horse permit applications. While he was director of the Division, Roberts made all of the decisions on whether to grant or deny a pari-mutuel permit. Neither the secretary, nor the deputy secretary made any decisions on quarter horse applications during Roberts' tenure as director of the Division. Roberts testified that the Division developed guidelines in 2007 to aid in the review of all quarter horse applications after the first of several new applications for quarter horse permits were filed. Roberts explained that the Division had no rules implementing the statutory criteria in 2007, because there had not been any quarter horse applications filed with the Division for a long time. The guidelines for review of quarter horse applications developed under Roberts did not require the applicant to demonstrate that the property was zoned for a racetrack before the permit was issued. The Division interpreted the statutory "location is available for use" criterion to mean that racetrack zoning was "possible to obtain." Roberts noted that another pari-mutuel statute, section 550.055(2), specifically required the applicant for permit relocation to demonstrate that the location is zoned for racing before the Division issued a permit. In contrast, section 550.334 does not specifically require the applicant to demonstrate that racetrack zoning is in place. During Roberts' directorship, the Division would accept a letter from a land use attorney familiar with zoning in the area where the racetrack would be located describing the process by which proper zoning could be obtained as adequate evidence that zoning was obtainable. Consistent with this guideline, deficiency letters issued by the Division under Roberts requested applicants to provide an opinion from an attorney and from a local government official stating that proper zoning for the proposed location was "obtainable." That standard was specifically altered in the September 11, 2009, deficiency letter for Ft. Myers' Dade County proposal. The guidelines for review of quarter horse applications developed under Roberts did not require the applicant to own the land at the time the permit was issued. Rather, the applicant was required to give reasonable assurances that the property was under the control of the applicant by written agreement. The applicant typically satisfied this guideline by submitting a contract for purchase or a lease with the application. Some contracts might include a contingency or condition precedent. For example, the real estate contract in the Gretna Racing, LLC, application listed a number of contingencies that must be met. Roberts received numerous complaints from existing pari-mutuel permitholders (including, in particular, representatives of Hartman and Tyner) about the manner in which the Division was granting quarter horse permits. Ross also made it known to Roberts that he was not in favor of granting quarter horse permits. Roberts, however, believed that he was required to do what the letter of the statute dictated. According to Hartman and Tyner's attorney, John Lockwood, the "special interests" wanted Roberts terminated, because they were concerned with the quarter horse application review process. Lockwood testified that he heard complaints that Roberts gave out quarter horse permits "like candy." Lockwood made his client's concerns about Roberts' interpretation of the quarter horse statute known to Ross. Later, Jim Greer, then a contract lobbyist for Hartman and Tyner, called Ross and asked him to fire Mr. Roberts. Ross met with Roberts and gave him the option of termination or resignation on July 16, 2009, within one week after Mr. Greer asked him to terminate Roberts. Roberts was not given a reason for his termination. Joe Dillmore became the interim director of the Division after Roberts was forced to resign. However, according to Dillmore, Ross was, in fact, the person in charge of all quarter horse permit applications after Roberts left. Ross told Dillmore that he wanted to be informed on decisions at every level of the quarter horse application process. Ross made it known to Dillmore that he believed the 100-mile restriction placed on other pari-mutuel permitholders should also be applied to quarter horse permit applications, even though the quarter horse statute did not impose a location restriction at that time. Ross opposed quarter horse racing because of the Governor's opposition to gambling in general. According to Barnes, Ross wanted to be kept apprised of all action on pending quarter horse permits, including deficiency letters, and any recommendation for approval or denial. Previously, Barnes had never been required to report his daily activities to a deputy secretary. Barnes was assigned to process the Application in October 2009, after the location changed from Lee County to Miami-Dade County. Barnes prepared the deficiency letter issued to Ft. Myers on September 11, 2009. On August 11, 2009, approximately three weeks after Roberts was forced to resign, there was a meeting held at the Calder Race Track in Miami between existing pari-mutuel permitholders and key agency personnel. The attendees of this meeting included representatives of Hartman and Tyner, Calder, and Flagler, the three loudest voices in opposition to the expansion of quarter horse gaming into Miami-Dade County. The agency was represented at the Calder meeting by Secretary Drago, Deputy Secretary Ross, and Mr. Helton. One topic of the Calder meeting was the competitive impact of new quarter horse permits on existing permitholders. In particular, the South Florida permitholders made it very clear at this meeting that they opposed the issuance of any quarter horse permits in Miami-Dade County. The existing pari-mutuel permitholders at the Calder meeting told the Division representatives that the Division should require quarter horse applicants to demonstrate that the proposed location for the permit was zoned for a racetrack before the permit was issued. This interpretation had been advanced in legal challenges filed by existing permitholders (including Hartman and Tyner) before the Calder meeting. However, these legal challenges failed to achieve the desired result before the Calder meeting. On August 12, 2009, the day after the Calder meeting, Ft. Myers amended the Application ("Amended Application") for a quarter horse permit to change the location to Miami-Dade County. Lockwood found out about the Amended Application within days and called Barnes to express his client's extreme displeasure with this change in location. Barnes sent an email to Helton on August 19, 2009, relaying the call from Lockwood stating "don't know what that means in the long run." There was a meeting held in Tallahassee within days of this email between attorneys for the South Florida permitholders (including Lockwood) and attorneys for the Division (including Helton), so the permitholders could express their concerns with the quarter horse review process with Division counsel in person. The Application Review It was the Division's normal practice to provide applicants with deficiency letters so that applicants could be fully aware of any shortcomings and be given an opportunity to correct the deficiencies. It was not uncommon for the Division to issue two or more deficiency letters to an applicant. In the present case, Ft. Myers received a deficiency letter relating to its Lee County site, then received another one when the site was changed to Miami-Dade County. After Ft. Myers responded to the deficiency letter for Miami-Dade County, it reasonably relied upon the issuance of a further deficiency letter if there were remaining deficiencies. Although no additional letter was required, Ft. Myers believed one would be issued if there were further deficiencies. The Division did not issue a second deficiency letter for the Miami-Dade County site. The Division's rationale was that the first letter was clear and unambiguous, and if Ft. Myers did not respond appropriately, then the deficiencies must not be correctable. No one from the Division contacted Ft. Myers' representatives to discuss the continuing deficiencies. Two other quarter horse permit applications were pending at the same time the Application was under review at the agency: Hamilton Downs II and North Florida Racing. Hamilton Downs received its permit on February 4, 2010; North Florida Racing received its permit on March 26, 2010. Counsel for North Florida Racing remembers being told by Mr. Helton at the Division about changes to the Division's interpretation about the need for zoning approval. Counsel sent an email which says in part: "The powers that be seem to be shifting their interpretation of the statutes and rules to require that zoning for the track must be in place before a QH permit can be issued." Thereafter, North Florida Racing changed locations to a location zoned for quarter horse racing, and its permit was ultimately issued. It is unclear from the record whether Helton actually made the quoted statement, and, if so, in what context it was made. Helton could not remember the statement, but does not deny that it could have been made. As to the Hamilton Downs II location, neither of the two deficiency letters issued in that filing stated that the property had to be zoned for quarter horse racing. On November 4, 2009, Hamilton Downs provided the Division with a letter from the Town Council of Jennings stating it would support a zoning change at the proposed site to allow for quarter horse racing and that the zoning could be accomplished within six months. Thereafter, on December 14, 2009, Hamilton Downs submitted a letter from Hamilton County, Florida, stating the proposed site is, in fact, presently zoned for quarter horse racing. There is no credible evidence as to what precipitated Hamilton Downs' sending the Division that letter. The Administrative Hearing Petitions After receiving the denial letter from the Division, Ft. Myers prepared a Petition for Formal Administrative Hearing which it filed on January 29, 2010. On February 16, 2010, the Division rejected the Petition on the basis that it failed to identify disputed issues of material fact. Ft. Myers was given leave to amend its Petition within 21 days, i.e., on or before March 8, 2010. Ft. Myers filed its Amended Petition for Formal Administrative Hearing on March 8, 2010. The amended Petition was also rejected by the Division, this time on the basis that Ft. Myers did not have standing. The rational for that decision was that inasmuch as the SB 788 provisions could not come into effect and those provisions were a condition precedent to Ft. Myers' purchase agreement for property, Ft. Myers could not move forward on their Application and, thus, did not have standing in an administrative challenge. The rejection of Ft. Myers' Amended Petition was appealed to the First District Court of Appeal. In an opinion dated February 7, 2011, that court summarily reversed the Division's rejection of the Amended Petition. The Court remanded the case to the Division with directions to refer the case to the Division of Administrative Hearings. During the pendency of the appeal to the First District Court of Appeal, Chapter 2010-29 was passed and became law, effective July 1, 2010. The new law contained the 100-mile restriction mentioned above. There is not any location in Florida that would qualify for a new pari-mutuel facility under that limitation. If the original Petition filed on January 29, 2010, had been accepted by the Division, it is possible a final order could have been entered sometime between June 17 and July 26, 2010, had the case proceeded at a normal pace. Thus, it is possible the final order could have been entered prior to the new 100-mile limitation taking effect on July 1, 2010.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by Respondent, Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering, declaring that the 2010 version of section 550.334, applies to the Application filed by Petitioner, Ft. Myers Real Estate Holdings, LLC, for a quarter horse racing permit. IT IS THE UNDERSTANDING OF THE UNDERSIGNED AND ALL PARTIES THAT THIS RECOMMENDED ORDER WILL UNDERGO EXPEDITED AGENCY REVIEW SO THAT A FINAL ORDER AS TO THIS PORTION OF THE BIFURCATED PROCEEDING WILL BE RESOLVED AS QUICKLY AS PRACTICABLE. DONE AND ENTERED this 22nd day of August, 2011, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN 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 22nd day of August, 2011.
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 admini- stered, 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 during the period from October 6 through October 30, 1978 horses trained by the Respondent were entered and ran in five separate races at Calder race course. Subsequent to each race a urine specimen was taken from each horse and that each 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 tests and that each report showed that each 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 K-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 October 6, 1978, at the Calder Race Course in Broward County, Florida. On that date, Myth Master, a horse trained by the Respondent, ran in the second race and finished in second position. Following the race, and on the same date, a urine specimen was taken from the horse, Myth Master. 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 Despropionyl Fentanyl, which is classified as a derivative of Fentanyl, a narcotic. The process which occurred in Myth Master after he received the Fentanyl, was that the Fentanyl was metabolized in the horse's system to become Despropionyl 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 facts in this case show that the Respondent, Frank Rudolph Solimena, was acting as a horse trainer on October 13, 1978, at the Calder Race Course in Broward County, Florida. On that date, Turbine Powered, a horse trained by the Respondent, ran in the fourth race and finished in second place. Following the race, and on the same date, a urine specimen was taken from the horse, Turbine Powered. 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 Despropionyl Fentanyl, which is classified as a derivative of Fentanyl, a narcotic. The process which occurred in Turbine Powered after he received the Fentanyl, was that the Fentanyl was metabolized in the horse's system to become Despropionyl 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 facts in this case show that the Respondent, Frank Rudolph Solimena, was acting as a horse trainer on October 26, 1978, at the Calder Race Course in Broward County, Florida. On that date, Myth Master, a horse trained by the Respondent, ran in the tenth race and finished in second place. Following the race, and on the same date, a urine specimen was taken from the horse, Myth Master. 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 Despropionyl Fentanyl, which is classified as a derivative of Fentanyl, a narcotic. The process which occurred in Myth Master after he received the Fentanyl, was that that Fentanyl was metabolized in the horse's system to become Despropionyl Fentanyl, and that latter substances 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 facts in this case show that the Respondent, Frank Rudolph Solimena, was acting as a horse trainer on October 28, 1978, at the Calder Race Course in Broward County, Florida. On that date, Ladrillazo, a horse trained by the Respondent, ran in the sixth race and finished in first place. Following the race, and on the same date, a urine specimen was taken from the horse, Ladrillazo. 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 Despropionyl Fentanyl, which is classified as a derivative of Fentanyl, a narcotic. The process which occurred in Ladrillazo after he received the Fentanyl, was that that Fentanyl was metabolized in the horse's system to become Despropionyl Fentanyl, and that latter substances 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 facts in this case show that the Respondent, Frank Rudolph Solimena, was acting as a horse trainer on October 30, 1978, at the Calder Race Course in Broward County, Florida. On that date, Triple Rhythm, a horse trained by the Respondent, ran in the eighth race and finished in second place. Following the race, and on the same date, a urine specimen was taken from the horse, Triple Rhythm. 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 Despropionyl Fentanyl, which is classified as a derivative of Fentanyl, a narcotic. The process which occurred in Triple Rhythm after he received the Fentanyl, was that that Fentanyl was metabolized in the horse's system to become Despropionyl Fentanyl, and that latter substances acted as a central nervous system stimulant in the horse during the course of the race. The narcotic, Fentanyl, carries the trade name, Sublimaze. Each of the horses referred to above was under the care and treatment of Carl J. Meyer, D.V.M., on the dates of the races in question. In addition to treating the horses that are the subject to this complaint, Dr. Meyer had treated other horses for which the Respondent was the trainer, beginning in 1976 and continuing through October of 1978. One of the conditions for which the disputed horses reportedly received treatment was a condition described by Dr. Meyer as Myopathy, and this treatment form was administered to each of the questioned horses on the date of the disputed race event. According to dr. Meyer, Myopathy is a treatment for muscle soreness and is a type of 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, Steroids 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 replied that you take a needle and put 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 horses for Myopathy, he had purchased the substance, Sublimaze, and by his testimony stated that this narcotic had been used on horses other than those 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 10 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 hearing 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 its use as a pre-anesthetic agent. In dr. Maylin's opinion, 50 milligrams would be the indicated amount. In addition, Dr. Maylins' 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 those horses of the Respondent, which are 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. These 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 coarse 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 each of the horses for which the Respondent stands accused through this Notice to Show Cause, with Sublimaze, otherwise identified as Fentanyl; and that he gave these 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. Those acts by Dr. Meyer directed to the horses of the Respondent involved in this accusation, were unknown to the Respondent at the time the injections were administered and nothing that had transpired prior to those administrations placed the Respondent in the position of having reason to believe that Dr. Meyer was pursuing this course of conduct. In summary, although the horses in question ran in the subject races while under the effects of Fentanyl, metabolized to become Despropionyl Fentanyl, it was not through any acts 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 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: W. S. Frates, Esquire Frates, Floyd, Pearson, Stewart, Richman & Greer, P.A. One Biscayne Tower, 25th Floor Miami, Florida 33131 David M. Maloney, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Joel S. Fass, Esquire Colodny and Fass 626 Northeast 124th Street North Miami, Florida 33181 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF BUSINESS REGULATION DIVISION OF PARI-MUTUEL WAGERING STATE OF FLORIDA, DEPARTMENT OF BUSINESS REGULATION, DIVISION OF PARI-MUTUEL WAGERING, Petitioner, vs. CASE NO. 79-228 FRANK RUDOLPH SOLIMENA, Respondent. /
The Issue The issue in this case is whether Respondent, Srdan Saric, committed violations of Chapter 550, Florida Statutes (2005), and Florida Administrative Code Chapter 61D-6, as alleged in an Administrative Complaint filed with the Department of Business and Professional Regulation in DBPR Case Nos. 2005042972, 2005039423, and 2005042974, and amended January 30, 2006; and, if so, what disciplinary action should be taken against his State of Florida pari-mutuel wagering occupational license.
Findings Of Fact The Parties. Petitioner, the Department of Business and Professional Regulation, Division of Pari-mutuel Wagering (hereinafter referred to as the "Division"), is an agency of the State of Florida created by Section 20.165(2)(f), Florida Statutes, and charged with the responsibility for the regulation of the pari- mutuel wagering industry pursuant to Section 550.0251, Florida Statutes. Respondent, Srdan Saric, is, and was at the times material to this matter, the holder of a pari-mutuel license, number 2016930-1021, issued by the Division. During the time period at issue in this case, Mr. Saric trained harness race horses and was a jockey at the harness race course of Pompano Park Racing (hereinafter referred to as "Pompano Park"), located in Pompano Beach, Florida. Pompano Park is a harness horse racing facility authorized to conduct pari-mutuel wagering in Florida and is the location of all activity material to this matter. On July 27, 2005, Respondent was the trainer of record and jockey for two standard bred harness race horses, known as "Youngbro Clever" and "Swift Courier." Both horses were owned by Jeanette Glowacki. The Events of July 27, 2005. Youngbro Clever and Swift Courier were both scheduled to race at Pompano Park the evening of July 27, 2005. Youngbro Clever was to run in the fourth race and Swift Courier was to run in the twelfth race. The fourth race was scheduled to begin at approximately 8:15 to 8:30 p.m. Both horses were being housed in Barn C of Pompano Park. That barn was shared by the two horses being trained by Mr. Saric and horses owned and trained by Michael Snyder. Tack boxes, where equipment was stored, were located at Barn C adjacent to the wall just outside the horse stalls. Those located in the area where Mr. Saric's horses were housed were considered to be within areas of Barn C which he occupied or had the right to occupy. The tack boxes are part of the premises within the grounds of a racing permitholder where racing animals were lodged or kept and which Mr. Saric occupied or had the right to occupy. At approximately 7:30 p.m., on July 27, 2005, Jeremy Glowacki, the son of the owner of Youngbro Clever and Swift Courier and an employee Mr. Saric had previously fired, informed Pompano Park security supervisor Richard Masters that he had witnessed Mr. Saric place syringes in a tack box located just outside Barn C, Stall 8. Based upon Mr. Glowacki's report, Pompano Park security searched the tack box and found a 35 cc hypodermic syringe with needle attached and a 12 cc hypodermic syringe with needle attached. As a result of the discovery of the syringes, Youngbro Clever and Swift Courier were immediately scratched from their scheduled races and were sent to the State Veterinarian for drug testing. Mr. Saric was also suspended from Pompano Park and remained so at the time of the final hearing of this matter. The State Veterinarian drew blood serum sample 173675 from Youngbro Clever and blood serum sample 173680 from Swift Courier. These samples were processed in accordance with established procedures. Both blood serum samples were, along with the two syringes recovered from Mr. Saric's tack box, sent to the University of Florida Racing Laboratory (hereinafter referred to as the "Racing Laboratory"), for analysis. Results of Racing Laboratory Testing. The Racing Laboratory, following applicable procedures, performed an analysis on the syringes found in Mr. Saric's tack box and the blood serum samples taken from Youngbro Clever and Swift Courier. No prohibited substance was detected by the Racing Laboratory analysis of the 35 cc syringe. Flunixin was detected by the Racing Laboratory analysis of the 12 cc syringe. Flunixin is a "non-steroidal anti-inflammatory drug" which can be used to suppress inflammation and provide pain relief to race horses. The Association of Racing Commissioners International, Inc. has classified Flunixin under the Uniform Classification Guidelines for Foreign Substances as a "Class IV" drug. As such, it is considered an "impermissible substance." Flunixin in excess of 200 ng/ml. was also found by the Racing Laboratory in blood serum sample number 173675 which had been collected from Youngbro Clever. Flunixin in excess of 200 ng/ml. was also found by the Racing Laboratory in blood serum sample number 173680, which had been collected from Swift Courier. In addition to Flunixin, the Racing Laboratory test of blood serum sample number 173675 collected from Youngbro Clever and blood serum sample number 173680 collected from Swift Courier also revealed that those samples contained phenylbutazone, or its metabolites, in excess of 16 micrograms per milliliter of serum. Like Flunixin, phenylbutazone is a "non-steroidal anti-inflammatory drug" which can be used to suppress inflammation and provide pain relief to race horses. Pursuant to Florida Administrative Code Rule 61D- 6.008, phenylbutazone, unlike Flunixin, may be administered to a race horse in an amount which, following the running of a race, will result in the horse's blood serum being found to contain less than 8 micrograms per milliliter of serum. Dr. Cole testified convincingly and credibly that Flunixin and phenylbutazone had been administered to Youngbro Clever and Swift Courier within 24 hours of their scheduled races on June 27, 2005. Youngbro Clever and Swift Courier, having been administered Flunixin and phenylbutazone within 24 hours of their scheduled races, would have been able to compete at a higher level in their scheduled races than if these drugs had not been ministered to them. According to Dr. Cole, whose unrebutted testimony in this regard is also credited, if Youngbro Clever and Swift Courier had been allowed to run their scheduled races, blood samples collected immediately after their respective races would have revealed the presence of phenylbutazone in each horse in excess of 8 micrograms per milliliter of serum. Mr. Saric's Prior Disciplinary History. Mr. Saric has previously been disciplined by the Division on two separate occasions. On both occasions, Mr. Saric was fined because Methocarbamol (a skeletal muscle relaxant and Class IV drug) was detected in urine samples collected from Youngbro Clever as part of the post race analyses. The first violation for which Mr. Saric was disciplined took place on December 6, 2004. Mr. Saric was fined $250.00 for this violation of Section 550.2415(1)(a), Florida Statutes (2004), and Florida Administrative Code Rule 61D- 6.011(1). The second violation for which Mr. Saric was disciplined took place on April 15, 2005. Mr. Saric was fined $500.00 for this violation of Section 550.2415(1)(a), Florida Statutes, and Florida Administrative Code Rule 61D-6.011(1). Mr. Saric's Responsibility for Youngbro Clever and Swift Courier. While Mr. Saric attempted, unsuccessfully, to prove that he did not place the syringes in his tack box or inject Flunixin and phenylbutazone into Youngbro Clever and Swift Courier, the evidence failed to support such a finding. The evidence also failed to prove that Jeremy Glowacki was responsible for these violations. More importantly, the evidence failed to prove that Mr. Saric took the measures necessary to protect Youngbro Clever and Swift Courier in particular and the racing industry generally from harm, especially considering the fact that this case involves the third time that Youngbro Clever has tested positive for a prohibited substances in his blood.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the final order be entered by the Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering, finding that Srdan Saric violated Sections 550.105(5)(b) and 550.2415(1)(c), Florida Statutes, and Florida Administrative Code Rules 61D-6.004(2) and 61D-6.011(1), as described in this Recommended Order; suspending his license for a total period of two years from the date of the final order; and requiring that he pay a fine of $6,000.00. DONE AND ENTERED this 14th day of April, 2006, in Tallahassee, Leon County, Florida. S LARRY J. SARTIN 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 14th day of April, 2006. COPIES FURNISHED: S. Thomas Peavey Hoffer Ralf E. Michels Assistants General Counsel Department of Business and Professional Regulation Division of Pari-Mutuel Wagering Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202 Rose H. Robbins, Esquire One Boca Place 2265 Glades Road Suite 324 Atrium Boca Raton, Florida 33431 David J. Roberts, Director Division of Pari-Mutuel Wagering Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Josefina Tamayo, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202
Findings Of Fact Petitioner is an agency of the State of Florida charged with the duty of regulating, among other things, the harness horse racing industry in the State of Florida. On November 28, 1979, Charles Federman, holder of pari-mutuel trainer's license L-25378, trained and entered the standardbred horse, Hanker Chief, in the ninth race at Pompano Park in Florida, where Tourist Attractions, Inc., is licensed by the Florida Division of Pari-Mutuel Wagering to conduct horse racing. The horse ran in the race and won. Following the race a urine specimen was taken from the horse by Division personnel. Following collection, the sample, was sealed and was placed in a locked refrigerator in the office of the detention barn where the samples are customarily stored until transportation to the Division laboratory. A card bearing number 56969 was filled out, and the top of the card bearing the same number was taped to the sample. The bottom of the card, also bearing the number 56969 was filled out by the collector of the sample to contain information pertinent to where, when, by whom, and from what horse the sample was taken. The sample was picked up at the detention barn by Division personnel and transported to the Division laboratory. The sample was analyzed by personnel at the Division laboratory by means of seven thin layer chromotographies, gas chromotography, and mass spectrometry. These analyses corresponded precisely with analyses by identical tests of a standard derived from Stadol, a drug marketed by Bristol Laboratories whose active ingredient is "butorphanol". Accordingly, it is specifically concluded that the facts of record in this proceeding support the conclusion that the laboratory analyses performed by Division personnel were accurate, and that those analyses establish a positive identification of "butorphanol" to have been contained in the urine specimen taken from Respondent's horse following the ninth race on November 28, 1979. Butorphanol is marketed as a salt, butorphanol tartrate, under the brand name Stadol, by Bristol Laboratories. Butorphanol is a narcotic with potent analgesic properties approximately equivalent to that of morphine, although its exact mechanism is unknown. Butorphanol acts as a "depressant", in that two milligrams depresses respiration to a degree equal to ten milligrams of morphine, but also has "stimulant" effects on the cardiovascular system. Butorphanol is not recommended for humans physically dependent on narcotics because it has a physical dependence liability, although admittedly low. In horses, butorphanol acts as an analgesic and, depending on dosage, it either depresses or stimulates a horse. The drug would be of use in harness racing for its potent pain killing effects if a horse were sore or lame, or for its depressant effects if a horse were high-strung and likely to break its gait. The smallest dosage of Stadol marketed by Bristol Laboratories is a 1 milliliter vial containing 1 milligram of butorphanol. In the smallest administrable injection, butorphanol produces narcotic effects. Respondent was present on November 15, 1979, at a meeting of all drivers held before the start of the meet during which the offense charged occurred. At that meeting, Division personnel announced to all drivers and trainers in attendance that Stadol was a prohibited substance and was not to be used. Drivers are required to attend meetings such as that held on November 15, 1979, meetings under the harness racing Rules. See, Rule 7E-4.21 (8), Florida Administrative Code. Respondent holds a driver's/trainer's license. In addition, notices were posted around the track advising that the use of Stadol was prohibited. In particular, such a notice was posted in the Racing Secretary's office where every horseman must go to eater a horse in a race. On the day of the race in question Respondent allowed a person identified by him as "Dr. Rites" to examine and treat Hanker Chief for a sore leg which had been causing the horse to limp. During the treatment, "Dr. Rites" gave the horse injections, which the Respondent understood to be Lasix and a "pain killer". "Dr. Ritos" was not, at that time, licensed by the Division as a veterinarian as required by Rule 7E-4.31(7), Florida Administrative Code. The parties to this proceeding each submitted proposed findings of fact for consideration by the Hearing Officer. To the extent that those proposed findings of fact have not been included in this order, they have been rejected as being either irrelevant to the issues involved in this proceeding, or as not having been supported by evidence of record.
The Issue The issue is whether the proposed amendment to Florida Administrative Code Rule 61D-3.001 is an invalid exercise of delegated legislative authority.
Findings Of Fact The Division is the agency responsible for enacting administrative rules within the scope of its delegated legislative authority as set forth in chapter 550, Florida Statutes, as the statutes contained therein are amended from time to time. Petitioner, FHBPA, is a Florida not-for-profit corporation whose purposes, as set forth in its Amended and Restated Articles of Incorporation filed with the Secretary of State on December 5, 2005, include, but are not limited to, the following: A. to advance, foster, and promote, generally, the sport of thoroughbred horse racing and the thoroughbred horse racing industry in the State of Florida; * * * D. to establish standards for racetrack conditions and equine care, safety, health, treatment, and well-being; * * * to foster professional integrity among horsemen and the horse racing industry and to develop a code of ethics governing the behavior of those persons engaged therein; * * * to cooperate with equine and humane organizations and public and private agencies, regulatory authorities, racing associations, racing commissions and other organizations located in Florida including, for example, the Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering (the “Division”), and its departments and sub-divisions. and the public, in formulating fair and appropriate laws, rules, regulations and conditions that affect in any manner pari-mutuel wagering and awards, and are deemed to be in the best interests of horsemen, their employees, backstretch personnel, and the horse racing industry in general, and to ensure the enforcement of such rules is fair and equitable; * * * J. to represent the interests of its members, before any local, state, or federal administrative, legislative, and judicial fora including, but not limited to, the Division with regard to all matters affecting horsemen and the horse racing industry. Currently, the FHBPA represents more than 200 Florida licensed thoroughbred horse trainers and more than 5,000 Florida licensed thoroughbred horse owners. Pursuant to its Amended and Restated Articles of Incorporation and applicable law, the FHBPA has associational standing to file and prosecute this petition challenging the proposed amendment to rule 61D-3.001 on behalf of its members. Petitioner, Gulfstream Park, is the holder of a pari-mutuel permit issued by the Division authorizing thoroughbred horse racing at its permitted facility in Broward County. It is directly and substantially affected by the proposed amendment to rule 61D-3.001. Current rule 61D-3.001(2) provides that alleged violations of chapter 550 or chapter 61D in horseracing “shall be heard by a board of stewards. Each horseracing permitholder shall establish a board of three stewards, at least one of whom shall be the state/division steward selected and hired by the division.” Current rule 61D-3.001(19) provides, in relevant part: (19) Orders. In the event the stewards … determine a statute or rule has been violated and a penalty of a license suspension of 60 days or less, or a fine not to exceed $1,000 is sufficient to address the violation, the stewards or division judge shall enter an order within 14 days after the hearing. The order shall include a caption, time and place of the hearing, findings of fact, statement of rules or statutes violated, and a ruling stating the length of any suspension and the amount of the fine imposed for each violation. In the event the stewards … determine a statute or rule has been violated and a penalty of a license suspension of greater than 60 days, or a fine of greater than $1,000 should be imposed for the violation, the stewards or division judge shall forward a recommendation to the division stating their findings of fact, statement of statutes or rules violated, and recommended penalty within 14 days after the hearing. The recommendation shall be served to each party at the time it is forwarded to the division. A party shall have 14 days from the date the recommendation is issued in which to file a response with the division prior to the entry of a final order. Subsection (19) of the current rule plainly contemplates that the stewards may make factual findings sufficient to permit them to “determine a statute or rule has been violated.” The language of subsection (19) has been in place since June 26, 2011. Section 120.80 is titled “Exceptions and special requirements; agencies.” The statute sets forth various exceptions to the requirements of chapter 120 for specific agencies in specific situations. Section 120.80(4) sets forth the exceptions and special requirements for the Department of Business and Professional Regulation. Section 120.80(4)(a) is the provision cited by the Division as one of the statutes implemented by both the current rule and the proposed amendment to rule 61D-3.001. Section 120.80(4)(a) provides: (a) Business regulation.—The Division of Pari- mutuel Wagering is exempt from the hearing and notice requirements of ss. 120.569 and 120.57(1)(a), but only for stewards, judges, and boards of judges when the hearing is to be held for the purpose of the imposition of fines or suspensions as provided by rules of the Division of Pari-mutuel Wagering, but not for revocations, and only upon violations of subparagraphs 1.-6. The Division of Pari-mutuel Wagering shall adopt rules establishing alternative procedures, including a hearing upon reasonable notice, for the following violations: Horse riding, harness riding, greyhound interference, and jai alai game actions in violation of chapter 550. Application and usage of drugs and medication to horses, greyhounds, and jai alai players in violation of chapter 550. Maintaining or possessing any device which could be used for the injection or other infusion of a prohibited drug to horses, greyhounds, and jai alai players in violation of chapter 550. Suspensions under reciprocity agreements between the Division of Pari-mutuel Wagering and regulatory agencies of other states. Assault or other crimes of violence on premises licensed for pari-mutuel wagering. Prearranging the outcome of any race or game. Section 120.569 is titled “Decisions which affect substantial interests.” Subsection (1) provides as follows: The provisions of this section apply in all proceedings in which the substantial interests of a party are determined by an agency, unless the parties are proceeding under s. 120.573 [mediation of disputes] or s. 120.574 [summary hearings]. Unless waived by all parties, s. 120.57(1) applies whenever the proceeding involves a disputed issue of material fact. Unless otherwise agreed, s. 120.57(2) applies in all other cases. If a disputed issue of material fact arises during a proceeding under s. 120.57(2), then, unless waived by all parties, the proceeding under s. 120.57(2) shall be terminated and a proceeding under s. 120.57(1) shall be conducted. Parties shall be notified of any order, including a final order. Unless waived, a copy of the order shall be delivered or mailed to each party or the party’s attorney of record at the address of record. Each notice shall inform the recipient of any administrative hearing or judicial review that is available under this section, s. 120.57, or s. 120.68; shall indicate the procedure which must be followed to obtain the hearing or judicial review; and shall state the time limits which apply. (emphasis added). Section 120.57 is titled “Additional procedures for particular cases.” Section 120.57(1) sets forth “additional procedures applicable to hearings involving disputed issues of material fact” and section 120.57(2) sets forth “additional procedures applicable to hearings not involving disputed issues of material fact.” Subsection (1)(a) provides: (a) Except as provided in ss. 120.80 and 120.81, an administrative law judge assigned by the division shall conduct all hearings under this subsection, except for hearings before agency heads or a member thereof. If the administrative law judge assigned to a hearing becomes unavailable, the division shall assign another administrative law judge who shall use any existing record and receive any additional evidence or argument, if any, which the new administrative law judge finds necessary. In the absence of an exception in section 120.80 or 120.81, a case involving a disputed issue of material fact must be heard by an ALJ or an agency head or member thereof. Section 120.57(2) gives agencies greater discretion in hearings not involving disputed issues of material fact to agency discretion: ADDITIONAL PROCEDURES APPLICABLE TO HEARINGS NOT INVOLVING DISPUTED ISSUES OF MATERIAL FACT.— In any case to which subsection (1) does not apply: The agency shall: Give reasonable notice to affected persons of the action of the agency, whether proposed or already taken, or of its decision to refuse action, together with a summary of the factual, legal, and policy grounds therefor. Give parties or their counsel the option, at a convenient time and place, to present to the agency or hearing officer written or oral evidence in opposition to the action of the agency or to its refusal to act, or a written statement challenging the grounds upon which the agency has chosen to justify its action or inaction. If the objections of the parties are overruled, provide a written explanation within 7 days. An agency may not base agency action that determines the substantial interests of a party on an unadopted rule or a rule that is an invalid exercise of delegated legislative authority. The record shall only consist of: The notice and summary of grounds. Evidence received. All written statements submitted. Any decision overruling objections. All matters placed on the record after an ex parte communication. The official transcript. Any decision, opinion, order, or report by the presiding officer. Section 120.80(4)(a) exempts the Division from the hearing and notice requirements of sections 120.569 and 120.57(1) for hearings before stewards “when the hearing is to be held for the purpose of the imposition of fines or suspensions” for violations of subparagraphs 1.-6. Section 120.80(4)(a) does not exempt the Division from the hearing and notice requirements of sections 120.569 and 120.57(1)(a) for license revocations. The statute requires the Division to adopt rules establishing “alterative procedures” for the stewards’ hearings under subparagraphs 1.-6. It is notable that section 120.80(4)(a) does not under any circumstance exempt the Division from section 120.57(1)(b)-(n), which provides the procedural due process rights of parties to administrative hearings involving disputed issues of material fact. The narrow exemption provided by section 120.80(4)(a) allows the Division to retain jurisdiction over cases involving disputed issues of material fact rather than refer them to DOAH or have them heard by the agency head or a member thereof as would otherwise be required by sections 120.569(1) and 120.57(1)(a). Stewards may hold formal hearings that carry the penalty of fines or suspensions for the violations listed in section 120.80(4)(a)1.-6., but must respect the procedural rights established by section 120.57(1)(b)-(n). Nothing about the interplay of sections 120.57 and 120.80 suggests that stewards lack the authority to resolve disputed issues of material fact in the hearings subject to their jurisdiction. The Legislature’s exemption of the Division from only subsection (1)(a) of section 120.57 strongly suggests the opposite. The Division’s current rule 61D-3.001 clearly anticipates that stewards will resolve disputed issues of material fact in order to determine whether a statute or rule has been violated. The text of the proposed rule amendment indicates that the Division has revised its view of the statutory authority conferred by section 120.80(4)(a). The following are the most problematic portions of the proposed amendment: Hearings Conducted by a Board of Stewards: All proceedings for alleged violations indicated in subsection (1)(b) of this rule shall be heard by a Board of Stewards unless the division indicates in its administrative complaint that it is seeking revocation of a licensee’s pari-mutuel license or the Board of Stewards relinquishes jurisdiction as required by the Florida Administrative Code and/or Florida Statutes. Allegations of the following violations shall be heard by a Board of Stewards: Horse riding and harness riding actions in violation of Chapter 550, F.S. Application and usage of drugs and medication to horses in violation of Chapter 550, F.S. Maintaining or possessing any device which could be used for the injection or other infusion of a prohibited drug to horses in violation of Chapter 550, F.S. Suspensions under reciprocity agreements between the Division of Pari-Mutuel Wagering and regulatory agencies of other states involving horse racing. Assault or other crimes of violence on premises licensed for horse racing. Prearranging the outcome of any pari-mutuel horse racing event. * * * Procedures Applicable to Hearings by a Board of Stewards: * * * Conduct of Hearings Before a Board of Stewards The division shall have an opportunity to present to the Board of Stewards the undisputed facts of the alleged violation and any evidence of mitigation or aggravation for purposes of deciding a penalty. All parties shall have an opportunity to present evidence and witnesses regarding mitigation for purposes of deciding a penalty. All witnesses shall be sworn in by a member of the Board of Stewards and are subject to examination, cross-examination, and questioning by any member of the Board of Stewards. All parties shall have an opportunity to present legal arguments to the Board of Stewards, including interpretation of applicable division rules and statutes. * * * (4) Disputes of Material Fact: The Board of Stewards does not have jurisdiction to hear cases involving genuine issues of material fact. For purposes of this rule, a material fact is a fact that is essential to the determination of whether the respondent committed the alleged violation. Once a disputed issue of material fact is presented, the Board of Stewards must relinquish jurisdiction over the proceeding back to the division to be governed by Section 120.57(1), F.S., and referred to the Division of Administrative Hearings. The Division’s rationale for the proposed amendment is that section 120.80(4)(a) only allows stewards to impose fines or suspensions upon licensees, not to make factual determinations as to the underlying violations. The Division argues that if a matter requires anything more than a decision over the imposition of a fine or suspension when the violation is undisputed, then the exemption in section 120.80(4)(a) is no longer operative and the hearing and notice requirements of sections 120.569 and 120.57(1)(a) apply to force the stewards to refer the case to DOAH. The Division concludes that the proposed amendment does not limit the stewards’ jurisdiction but merely restates the limitations imposed by section 120.80(4)(a). The undersigned finds that the Division’s reading of the statute, while colorable if one considers the language of section 120.80(4)(a) narrowly and in isolation from the other provisions it cites, is fundamentally backward. As noted above, the only portion of section 120.57 that the Division is ever exempted from is subsection (1)(a). Thus, under section 120.80(4)(a), when the stewards go forward with their hearings to impose fines or suspensions, they remain subject to the provisions of section 120.57(1)(b)-(n). These provisions contain repeated specific references to the disputed issues of material fact that the Division argues stewards lack the jurisdiction to decide. For example: Section 120.57(1)(b) states that parties must be provided the opportunity “to submit proposed findings of facts and orders.” There would be no need to submit proposed findings of fact in the stewards’ hearings contemplated by the Division. Section 120.57(1)(c) sets forth the limitation on the use of hearsay in a section 120.57(1) hearing, a provision that would not be necessary in a proceeding with no disputed facts. Section 120.57(1)(d) provides, in relevant part, “Notwithstanding s. 120.569(2)(g), similar fact evidence of other violations, wrongs, or acts is admissible when relevant to prove a material fact in issue, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, but it is inadmissible when the evidence is relevant solely to prove bad character or propensity.” (Emphasis added.) Again, this provision would not be necessary for a stewards’ hearing as contemplated by the Division, yet is fully applicable to the stewards’ hearings under section 120.80(4)(a). Section 120.57(1)(j) provides that “Findings of fact shall be based upon a preponderance of the evidence, except in penal or licensure disciplinary proceedings or except as otherwise provided by statute, and shall be based exclusively on the evidence of record and on matters officially recognized.” The jurisdictional authority of stewards is established by section 550.1155, the full text of which is as follows: 550.1155 Authority of stewards, judges, panel of judges, or player’s manager to impose penalties against occupational licensees; disposition of funds collected.— The stewards at a horse racetrack; the judges at a dog track[3]; or the judges, a panel of judges, or a player’s manager at a jai alai fronton may impose a civil penalty against any occupational licensee for violation of the pari-mutuel laws or any rule adopted by the division. The penalty may not exceed $1,000 for each count or separate offense or exceed 60 days of suspension for each count or separate offense. All penalties imposed and collected pursuant to this section at each horse or dog racetrack or jai alai fronton shall be deposited into a board of relief fund established by the pari-mutuel permitholder. Each association shall name a board of relief composed of three of its officers, with the general manager of the permitholder being the ex officio treasurer of such board. Moneys deposited into the 3 References to dog racing in this section have been eliminated by section 13, CS/SB 8A, approved by the Governor on May 25, 2021. As of the writing of this Final Order, the bill has not been codified. Therefore, the statute has been quoted in its 2020 form. board of relief fund shall be disbursed by the board for the specific purpose of aiding occupational licenseholders and their immediate family members at each pari-mutuel facility. When section 550.1155 is read in conjunction with section 120.80(4)(a), it is clear that the Legislature contemplated racetrack stewards having full authority to hear cases and impose the limited discipline of fines and suspensions against occupational licensees for violation of the pari-mutuel laws or Division rules, including cases involving disputed issues of material fact. Section 120.80(4)(a) does not extend that authority to cases seeking license revocation, which is consistent with the provisions of section 550.1155. The proposed amendment to rule 61D-3.001 provides that stewards may conduct only hearings not involving disputed issues of material fact. The board of stewards’ jurisdiction is expressly limited to hearings in cases with “undisputed facts” as to the violation. Evidence may be presented only as regards to mitigation or aggravation of the penalty for the violation. The proposed amendment requires the board of stewards to relinquish jurisdiction of the case to DOAH whenever a disputed issue of material fact arises, meaning that it strictly follows section 120.57(1)(a) in the face of the express exemption from that provision set forth in section 120.80(4). The authority of an agency to conduct hearings not involving disputed issues of material fact without resort to DOAH is codified in sections 120.569(1) and 120.57. The proposed amendment purports to implement section 120.80(4), but in fact ignores the exemption provided therein. In this, the proposed rule clearly contravenes the provisions of the statute it purports to implement. The Division’s reasoning, while erroneous, does not rise to the level of being arbitrary or capricious. The language of section 120.80(4)(a), restricting the exemption to hearings “held for the purpose of the imposition of fines or suspensions,” standing alone, could reasonably lead to the conclusion reached by the Division that the stewards’ hearings should be limited to instances in which the facts of the violation are undisputed and the only question is the level of discipline to be imposed. It is when section 120.80(4)(a) is placed in the context of sections 120.569(1), 120.57(1)(a), and 550.1155 that the Division’s error becomes apparent. The Division should have made the observation that sections 120.569(1) and 120.57(1)(a) require the agency to send disputed fact hearings to DOAH, and that section 120.80(4) provides an exemption from that requirement. The Division then should have asked, “If the stewards are already precluded from hearing cases involving disputed issues of material fact by section 120.569(1), then what does the exemption in section 120.80(4)(a) do?” It being impermissible for an executive branch agency to read a statute as mere surplusage, the exemption must mean that certain defined disputed fact hearings may be conducted by the agency without the need to refer the matter to DOAH.4 4 This reading is supported by the fact that section 120.80 exempts several other entities from section 120.57(1)(a): section 120.80(2)(b) exempts the Department of Agriculture and Consumer Services from section 120.57(1)(a) for hearings held pursuant to the Florida Citrus Code, chapter 601, Florida Statutes; section 120.80(7) exempts the Department of Children and Families from section 120.57(1)(a) for certain social and economic programs; section 120.80(8)(a) exempts the Department of Highway Safety and Motor Vehicles from section 120.57(1)(a) for hearings regarding driver licensing pursuant to chapter 322, Florida Statutes, and section 120.80(8)(b) exempts the same agency from section 120.57(1)(a) for hearings to deny, suspend, or remove a wrecker operator from participating in the wrecker rotation system established by section 321.051, Florida Statutes; section 120.80(10)(c) exempts the Department of Economic Opportunity from section 120.57(1)(a) for hearings held under the Reemployment Assistance Program law, chapter 443, Florida Statutes; section 120.80(12) generally exempts the Public Employees Relations Commission from section 120.57(1)(a); and section 120.80(15) provides that the Department of Health is exempt from section 120.57(1)(a) for hearings conducted “in execution of the Special Supplemental Nutrition Program for Women, Infants, and Children; Child Care Food Program; Children’s Medical Services Program; the Brain and Spinal Cord Injury Program; and the exemption from disqualification reviews for certified nurse assistants program.” The language of these exemptions is not uniform. In most instances, the statute states that the agency may conduct the hearings in-house “notwithstanding s. 120.57(1)(a).” In some instances, the language appears to give the agency the option of sending the case to DOAH or keeping it in-house. In none of the exemptions is there any indication that the hearing to be conducted by the agency may not resolve disputed issues of material fact. As explained above, the Division’s reasoning went in another direction. The undersigned finds the Division’s reasoning wrong but not irrational, or completely lacking in logic, and therefore not arbitrary or capricious. In light of the findings above, it is unnecessary to make extensive findings as to Petitioners’ other main contention, i.e., that the proposed amendment too closely mirrors DOAH procedures to be considered an “alternative procedure” under section 120.80(4)(a). The undersigned is persuaded that the Division had the better argument on this point. The statute does not define “alternative procedures.” The “alternative procedures” the Division adopts in its rule would still have to be consistent with administrative due process and thus would be expected to bear at least some passing similarity to the procedures of the Administrative Procedure Act. How similar the alternatives may become before they cease to be “alternative” under the statute is a question for another day.
The Issue Whether Respondents have violated the provisions of section 550.2415(1)(a), Florida Statutes (2010), and if so, what penalty should be imposed?
Findings Of Fact The Division of Pari-Mutual Wagering is the state agency charged with the regulation of pari-mutuel wagering pursuant to section 20.165 and chapter 550, Florida Statutes. At all times material to the allegations in the Administrative Complaints, Respondent Richard Alves held a pari- mutuel wagering greyhound trainer license, number 1053205-1021, issued by Petitioner. At all times material to the allegations in the Administrative Complaints, Respondent Casey Alves was also licensed as a greyhound trainer by Petitioner, having been issued license number 2015868-1021. At all times material hereto, Daytona Beach Kennel Club (DBKC) has been a licensed Florida pari-mutuel facility authorized to conduct pari-mutuel wagering. The Respondents trained greyhounds that were entered to race at DBKC. Cocaine is a local anesthetic and a Class One drug under the Uniform Classification Guidelines for Foreign Substances, as promulgated by the Association of Racing Commissioners, Inc. It is a prohibited medication pursuant to section 550.2415(10(a). At all times material hereto, Respondent Richard Alves was the trainer of record for greyhounds named "Flying Car," "Goldie's Trey," and "Iruska Direct." At all times material hereto, Respondent Casey Alves was the trainer of record for greyhounds named "Kelsos Jalopy," "Wild Mia," "Mani Appeal," and "Fuzzy's Big Shot." Flying Car On April 27, 2010, Flying Car was entered in the third race at DBKC. Flying Car finished sixth in the third race that day. Flying Car was subject to pre-race testing, and prior to the start of the race, urine sample 610687 was collected from Flying Car. The urine sample was processed in accordance with established procedures and forwarded to the lab for analysis. Richard Alves was not present in the testing enclosure when the urine sample was taken, because according to John Decker, DBPR Investigations Supervisor, trainers are not permitted to be on the track when greyhounds are there for the race. Trainers are required to drop the animals off at the track approximately one and a half hours prior to the racing schedule and leave them there until after the dog's race is over. Depending on when the dog races, the trainer has no contact with the racing animal from two to approximately five hours. Richard Alves did not sign the sample collection form for Flying Car, because he was not present when the collection was taken. The University of Florida Racing Laboratory tested urine sample number 610687 and found that it contained Benzoylecgonine, a metabolite of cocaine. Goldie's Trey Respondent Richard Alves was the trainer of record for racing greyhound Goldie's Trey on August 5, 2010. On August 5, 2010, Goldie's Trey was entered in the tenth race at DBKC. Goldie's Trey finished sixth in the tenth race. Goldie's Trey was subject to pre-race testing, and prior to the start of the race, urine sample 603139 was collected from Goldie's Trey. The urine sample was processed in accordance with established procedures and forwarded to the lab for analysis. Richard Alves was not present in the testing enclosure when the urine sample was taken, because trainers of greyhounds are not permitted to be on the track at that time. Richard Alves did not sign the sample collection form for Goldie's Trey, because he was not present when the collection was taken. The University of Florida Racing Laboratory tested urine sample 60319 and found that it contained cocaine, plus Benzoylecgonine and Ecgonine Methyl Ester, metabolites of Cocaine. Iruska Direct Respondent Richard Alves was the trainer of record for the greyhound, Iruska Direct. On November 26, 2010, Iruska Direct was entered in the 15th race at DBKC. Iruska Direct finished sixth in the 15th race. Iruska Direct was subject to pre-race testing, and prior to the start of the race, urine sample 662039 was collected from Iruska Direct and processed in accordance with established procedures and forwarded to the lab for analysis. Richard Alves was not present in the testing enclosure when the urine sample was taken, because trainers for greyhounds are not permitted to be on the track when the animals are there for the race. Richard Alves did not sign the sample collection form for Iruska Direct, because he was not present when the collection was taken. The University of Florida Racing Laboratory tested urine sample number 662039 and found that it contained Benzoylecgonine, a metabolite of cocaine. Kelsos Jalopy Respondent Casey Alves was the trainer of record for the racing greyhound Kelsos Jalopy. On November 10, 2010, Kelsos Jalopy was entered in the seventh race at DBCK. The dog finished second in the seventh race. Kelsos Jalopy was subject to pre-race testing, and prior to the start of the race, urine sample 661859 was collected from Kelsos Jalopy and processed in accordance with the established procedures and forwarded to the lab for analysis. Casey Alves was not present in the testing enclosure when the urine sample was taken, because trainers for greyhounds are not permitted to be on the track when the animals are there for the race. Casey Alves did not sign the sample collection form for Kelsos Jalopy, because he was not present when the collection was taken. The University of Florida Racing Laboratory tested urine sample number 661859 and found that it contained Benzoylecgonine, a metabolite of cocaine. Mani Appeal Respondent Casey Alves was the trainer of record for the racing greyhound Mani Appeal on November 6, 2010. On November 6, 2010, Mani Appeal was entered in the second race at DBKC. Mani Appeal finished fourth. Mani Appeal was subject to pre-race testing, and prior to the start of the race, urine sample 661795 was collected from Mani Appeal and processed in accordance with established procedures and forwarded to the lab for analysis. Casey Alves was not present in the testing enclosure when the urine sample was taken, because greyhounds' trainers are not permitted to be on the track at that time. Casey Alves did not sign the sample collection form for Mani Appeal, because he was not present when the collection was taken. The University of Florida Racing Laboratory tested urine sample number 661795 and found that it contained cocaine, and Benzoylecgonine and Ecgonine Methyl Ester, metabolites for cocaine. Wild Mia Respondent Casey Alves was the trainer of record for the racing greyhound Wild Mia on November 5, 2010. On that day, Wild Mia was entered in the sixth race at DBKC. Wild Mia finished second in the sixth race. Prior to the start of the race, urine sample 661786 was collected from Wild Mia as part of pre-race testing, and processed in accordance with established procedures and forwarded to the lab for analysis. Casey Alves was not present in the testing enclosure when the urine sample was taken, because greyhounds' trainers are not permitted to be on the track at that time. Casey Alves did not sign the sample collection form for Wild Mia, because he was not present when the collection was taken. The University of Florida Racing Laboratory tested urine sample number 661786 and found that it contained cocaine, and Benzoylecgonine and Ecgonine Methyl Ester, metabolites for cocaine. Fuzzy's Big Shot Respondent Casey Alves was the trainer of record for the racing greyhound Fuzzy's Big Shot on November 17, 2010. On that day, Fuzzy's Big Shot was entered in the fifth race at DBKC and finished first. Fuzzy's Big Shot was subject to pre-race testing. Prior to the start of the race, urine sample 661943 was collected from Fuzzy's Big Shot in accordance with established procedures and forwarded to the lab for analysis. As was the case with the other racing greyhounds, Casey Alves was not present in the testing enclosure when the urine sample was taken, because greyhound trainers are not permitted to be on the track at that time. Casey Alves did not sign the sample collection form for Fuzzy's Big Shot, because he was not present when the collection was taken. The University of Florida Racing Laboratory tested urine sample 661943 and found that it contained Benzoylecgonine, a metabolite of cocaine. Respondents steadfastly deny giving cocaine to any of the animals discussed above. Both Casey and Richard Alves' kennels were searched in November of 2010. No drugs or illegal substances were found in the kennels. John Dekker, Investigations Supervisor for the Department for the Department, testified that the procedures were different for pre-race and post-race testing.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED that the Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering enter a final order finding that Respondent Casey Alves violated section 550.2415(1)(a); impose an administrative fine of $2,000; and suspend his occupational license for a period of one year, retroactive to January 31, 2011. It is further recommended that the Department enter a final order finding that Richard Alves violated section 550.2415(1)(a); impose an administrative fine of $1,500 and suspend his occupational license for one year, retroactive to January 31, 2011. DONE AND ENTERED this 19th day of September, 2011, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON 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 19th day of September, 2011. COPIES FURNISHED: David Perry, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 40 Tallahassee, Florida 32399-2202 Mitchell G. Wrenn, Esquire 958 Ridgewood Avenue Daytona Beach, Florida 32114 Milton Champion, Director Division of Pari-Mutuel Wagering Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399 Layne Smith, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
