The Issue The Petitioner has accused the Respondent, Frank Rudolph Solimena, with a violation of Rule 7E-1.06(11)(a), Florida Administrative Code, which reads: The running of a horse in a race with any narcotic, stimulant, depressant or local anesthetic is prohibited. If the stewards shall find that any narcotic, stimulant, depressant or local anesthetic has been administered or attempted to be administered, internally or externally, to a horse before a race, such stewards shall impose such punishment and take such other action as they may deem proper under any of the rules, including reference to the Division, against every person found by them to have administered, or to have attempted to administer, or to have caused to be administered, or to have caused an attempt to administer, or to have conspired with another person to administer, such narcotic, stimulant, depressant or local anesthetic. If the Division laboratory shall find a positive identification of such medication, such finding shall constitute prima facie evidence that such horse raced with the medication in its system. Under the accusation, the Respondent is made responsible pursuant to the provisions of Rule 7E-1.18(3), Florida Administrative Code, referred to herein as the absolute insurer's rule, which provides that: The trainer shall be responsible for, and be the insurer of the condition of the horses he enters. Trainers are presumed to know the rules of the Division. Specifically, Respondent Solimena is accused under facts that allege that on December 4, 1978 a horse trained by the Respondent was entered and ran in the second race at Tropical Park, Inc. (at Calder Race Couse). Subsequent to the race a urine specimen was taken from the horse and the specimen was analyzed by the Petitioner's laboratory. It is further alleged that the Division of Pari- Mutuel Wagering laboratory reported the results of the test and that the report showed that the urine sample contained Despropionyl Fentanyl, which is classified as a derivative of Fentanyl, a narcotic compound.
Findings Of Fact This cause comes on for consideration based upon a Notice to Show Cause (Administrative Complaint) filed by the Petitioner, State of Florida, Department of Business Regulation, Division of Pari-Mutuel Wagering, against Frank Rudolph Solimena. At all times pertinent to the Notice to Show Cause, Frank Rudolph Solimena was the holder of license Nos. K-00257 and 5-00863, issued by the Petitioner to the Respondent, Frank Rudolph Solimena, enabling Solimena to operate as horse trainer and horse owner, respectively, at the several race tracks located in the State of Florida. The Petitioner, State of Florida, Department of Business Regulation, Division of Pari-Mutuel Wagering, is an agency of the State of Florida charged with the duty of the regulation of, among other things, the matters pertaining to thoroughbred horse racing in the State of Florida. The authority for such regulation is found in Chapter 550, Florida Statutes, and those rules promulgated to enforce the provisions of that chapter. Within that body of rules, are Rules 7E-1.06(11)(a) and 7E-1.18(3), Florida Administrative Code, alluded to in the issues statement of this Recommended Order. Those rules as set out in the issues statement shall serve as a basis for determining the facts and reaching the legal conclusions necessary to formulate a decision in this matter and official recognition is taken of the aforementioned rules. The facts in this case show that the Respondent, Frank Rudolph Solimena, was acting as a horse trainer on December 4, 1978, at Tropical Park, Inc., in Florida. On that date, Carpe Diem, a horse trained by the Respondent, ran in the second race and finished in first position. Following the race, and on the same date, a urine specimen was taken from the horse, Carpe Diem. That urine specimen was subsequently analyzed through a series of tests and the test directed to the urine sample revealed a positive identification of a substance known as Dispropionyl Fentanyl, which is classified as a derivative of Fentanyl, a narcotic. The process which occurred in Carpe Diem after he received the Fentanyl, was that the Fentanyl was metabolized in the horse's system to become Dispropionyl Fentanyl, and that latter substance acted as a central nervous system stimulant in the horse during the course of the race. The narcotic, Fentanyl, carries the trade name, Sublimaze. The horse referred to above was under the care and treatment of Carl J. Meyer, D.V.M., on the date of the race in question. In addition to treating this horse that is the subject of this complaint, Dr. Meyer had treated other horses for which the Respondent was the trainer, beginning in 1976 and continuing through December, 1978. One of the conditions for which the disputed horse and other horses trained by the Respondent reportedly received treatment was a condition described by Dr. Meyer as Myopathy. 1/ This treatment form was administered to Carpe Diem on the date of the disputed race event. According to Dr. Meyer, Myopathy is a treatment for muscle soreness and is a type acupuncture in which needles are injected at pressure points over the sore muscles and authorized medications are injected into those muscle areas, to include ACTH, Stroids and Lasix. When the Respondent received one of the billing statements from Dr. Meyer which indicated that horses that were being trained by the Respondent had been treated for Myopathy, the Respondent inquired of Dr. Meyer what Myopathy treatments consisted of. Dr. Meyer at that point told the Respondent that you take a needle and put it in certain pressure points in the muscle to relieve bursitis and/or pressure. When questioned in the course of the hearing about further details of the treatment for Myopathy, Dr. Meyer was unable to give a satisfactory explanation of the origins of the treatment for Myopathy and literature related to that treatment which might have been published through research in veterinary medicine. Within the same time frame that Dr. Meyer claimed to be treating the subject horse for Myopathy, he had purchased the substance, Sublimaze, and by his testimony stated that this narcotic had been used on horses other than the one involved in this accusation. The use in the unrelated group of horses was as a pre-anesthetic agent and to treat colic conditions. He claimed to use 18 milligrams as a pre-anesthetic dose and as much as 25 milligrams over a period of time to control the colic condition. The utilization of Sublimaze as a pre-anesthetic agent and for treatment for colic was disputed in the course of the bearing by the testimony of Dr. George Maylin, D.V.M., who also has a Ph.D. in pharmacology. At the time Dr. Maylin gave his testimony, he was an associate professor of toxicology at the New York State College of Veterinary Medicine, Cornell University, Ithica, New York. Dr. Maylin has done extensive research on the effect of Sublimaze as a pre-anesthetic agent and concludes that it is not a predictable anesthetic agent, and that a 10 milligram dosage would not have a desired effect in the use of pre-anesthetic cases. In Dr. Maylin's opinion, 50 milligrams would be the indicated amount. In addition, Dr. Maylin's extensive testing of Sublimaze in a colic model situation pointed out the ineffectiveness of Sublimaze as an analgesic in those colic cases. Finally, Dr. Maylin does not believe that 25 milligrams of Sublimaze over an extended period of time could be effective in treating the colic condition. Other trainers had horses which had been treated by Dr. Meyer around the same time period as the horse of the Respondent, which is the subject of this hearing. Those trainers are Ohayneo Reyes and Edward E. Plesa. Both Reyes and Plesa questioned Dr. Meyer on the subject of Meyer injecting Sublimaze in their race horses. Those questions were asked following accusations placed against those trainers for violations similar to those in the current case of the Respondent. The answers given to Reyes and Plesa by Dr. Meyer indicated that he had in fact injected the horses with Sublimaze, but he told them not to worry because the substance could not be detected. Dr. Meyer also testified in the course of the hearing that he had placed wagers on some of the horses being treated for Myopathy. An analysis of the evidence leads to the factual conclusion that Dr. Meyer infused Carpe Diem, for which the Respondent stands accused through this Notice to Show Cause, with Sublimaze, otherwise identified as Fentanyl, and that he gave those injections under the guise of a treatment for Myopathy, when in fact the so-called treatment for Myopathy was a ruse to enable Dr. Meyer to administer the Sublimaze. This act by Dr. Meyer directed to the horse of the Respondent involved in this accusation, was unknown to the Respondent at the time the injection was administered and nothing that had transpired prior to this placed Respondent in the position of having reason to believe that Dr. Meyer was pursuing this course of conduct. In summary, although the horse in question ran in the subject race while under the effects of Fentanyl, metabolized to become Dispropionyl Fentanyl, it was not through an act of the Respondent.
Recommendation It is recommended that the action through the Notice to Show Cause against the Respondent, Frank Rudolph Solimena, be DISMISSED. DONE AND ENTERED this 10th day of September, 1979, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32381 (904) 488-9675
The Issue Whether Petitioner is entitled to an award of attorney's fees and costs, pursuant to Section 57.111, Florida Statutes, for fees and costs he incurred as a result of his participation in the administrative proceeding the Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering (Department) initiated by filing an Administrative Complaint against him in DBPR Case No. 93050359 (DOAH Case No. 93-6638)?
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: From October of 1992 through October of 1993, the Broward County Metropolitan Organized Crime Intelligence Unit (MOCIU) conducted an undercover investigation at the Pompano Park Harness Track (Pompano). The investigation began as a result of information received by the police concerning alleged race-fixing activities at the track. James Gabriel, a City of Fort Lauderdale police officer, and William Piroth, a City of Pompano Beach police officer, were among the law enforcement personnel who participated in the investigation. During the course of the investigation, Gabriel assumed the role of a horse owner interested in fixing races at the track. Piroth served as Gabriel's backup. In furtherance of the undercover operation, Gabriel purchased a race horse (trotter) by the name of Yankee Roughneck and retained the services of William Palmer (one of the targets of the investigation) to train and drive the horse. At all times material to the instant case, Witmer was a veterinarian who treated race horses and who held an occupational license issued by the Department. On November 11, 1992, Gabriel met with Witmer at Pompano. Others may have been present, including Palmer, Gracie Lane (an associate of Palmer) and Herman Berger (a horse owner and another target of the investigation). During their meeting, Gabriel explained to Witmer that Yankee Roughneck was experiencing respiratory problems. He then asked Witmer, "How do we get this stuff out of the horse, or how do we get the horse to cough this stuff out?" Witmer suggested treatment with clenbuterol. He gave Gabriel the name of a person from whom Gabriel could purchase the drug, Robert Harris, a blacksmith working at the South Florida Trotting Center, Inc., in Lake Worth, Florida, and provided Gabriel with directions to Harris' place of employment. On November 19, 1992, Piroth and Detective John Mauro went to the South Florida Trotting Center, Inc., where Mauro purchased two bottles of clenbuterol from Harris. Clenbuterol is a bronchodilator with mucolytic properties. It helps both sick and healthy animals to breathe better. Notwithstanding its therapeutic uses (including the treatment of horses with upper respiratory problems), it is not approved for use in the United States. (It is approved for use, however, in Canada and Europe.) If clenbuterol is administered in a therapeutic concentration to a race horse 24 hours before a race, by the time of the race it will no longer have any effect on the horse. On April 2, 1993, Gabriel was at Pompano, outside one of the stable areas, when he approached Witmer, who was in his car about to drive off, and engaged in the following conversation:04 GABRIEL: Doc, you got two seconds? I just have to ask you something. Remember that horse Yankee Roughneck you were treating over there by Palmer's stable? Do you remember that horse? He had a breathing problem? WITMER: Yeah, yeah that's a long time ago. 04 The conversation was recorded on tape and the tape was played at the evidentiary hearing in this case. GABRIEL: Yeah we had talked about, you know, the . . . clenbuterol? WITMER: Oh, yes, I knew I remembered him. There was a blacksmith up there. Did you ever find him? GABRIEL: No. When I do find some, how do I give it to the horse? I don't want to ask these guys to do it. You know what I mean? How do you administer the - - - WITMER: You get a - - - GABRIEL: There is a spray and there is a powder, right? WITMER: There is an injectable, injectable. If you can get the injectable, because of the nature of the damn stuff, nobody wants to get caught with it. GABRIEL: Right, right. WITMER: If you get a bottle, what I'll do, you bring it to me, if you want me to, I'll download it into the syringe and I'll keep the syringe, you take the bottle back. GABRIEL: Okay. WITMER: And I can administer this to your horse. GABRIEL: Okay. Now we don't need to do it until he is sick though, right? WITMER: Oh, no, no. You don't do anything until he needs it. GABRIEL: Right no. Because this horse had pneumonia when it was born and - - - Berger was approximately 15 to 25 feet from where Gabriel and Witmer were conversing. Following his conversation with Witmer, Gabriel told Berger what had been said during the conversation. The information obtained as a result of the MOCIU's investigation at Pompano was provided to the Department. On October 19, 1993, the Department issued an Administrative Complaint and Emergency Order of Suspension against Witmer.05 The Administrative Complaint alleged the following: On or about September 30, 1991, JOHN R. WITMER, (WITMER) applied for and received a pari-mutuel wagering occupational license, number 1130043-1046, as a Veterinarian, and at all times material to the allegations in this complaint, held said license. On November 11, 1992, WITMER met with one Herman Berger, a horse owner, and an undercover police officer (hereinafter "the undercover officer"), and discussed the purchase and use of the drug Clenbutoral. WITMER then provided Berger and the undercover officer with a source for the purchase of the drug. Clenbutoral is a bronchodilator used to improve the performance of race horses, is not approved for use in the United States, and is an illegal substance as provided for in Section 499.03, Florida Statutes. On April 2, 1993, WITMER met with Berger and the undercover officer and discussed how Clenbutoral can be used. WITMER told them 05 The Administrative Complaint and Emergency Order of Suspension were contained in one document. that upon purchasing the drug, he (WITMER) would down-load it into a syringe, keep it in his truck and administer it to the horse. WITMER further cautioned Berger and the undercover officer to be careful with the Clenbutoral since it was an illegal substance. COUNT ONE The Petitioner hereby realleges numbered paragraphs 1 through 4 and incorporates the same in this Count One. On November 11, 1992, WITMER met with Herman Berger, a horse owner, and discussed the purchase and use of the drug Clenbutoral. Witmer then provided Berger and the undercover officer with a source for the purchase of the drug. By conspiring or conniving with said persons in a corrupt or fraudulent practice in relation to racing, or by committing such an act on his own account, WITMER violated Florida Administrative Code Rule 7ER92-2(18), currently Florida Administrative Code Rule 61D-1.002(18). COUNT TWO The Petitioner hereby realleges numbered paragraphs 1 through 4 and incorporates the same in this Count Two. On April 2, 1993, WITMER met with Berger and the undercover officer, and discussed how Clebutoral can be used. WITMER told them that upon purchasing the drug, he (WITMER) would down-load it into a syringe, keep it in his truck and administer it to the horse. WITMER further cautioned Berger and the undercover officer to be careful with the Clenbutoral since it was an illegal substance. By conspiring or conniving with said persons in a corrupt or fraudulent practice in relation to racing, or by committing such an act on his own account, WITMER violated Florida Administrative Code Rule 7ER92-2(18), currently Florida Administrative Code Rule 61D-1.002(18). COUNT THREE The Petitioner hereby realleges numbered paragraphs 1 through 4 and incorporates the same in this Count Three. On April 2, 1993, Witmer met with Berger and the undercover officer, and discussed how Clenbutoral can be used. WITMER told them that upon purchasing the drug, he (WITMER) would down-load it into a syringe, keep it in his truck and administer it to the horse. WITMER further cautioned Berger and the undercover officer to be careful with the Clenbutoral since it was an illegal substance. By conspiring to affect the outcome of a horserace through the administration of medication or drugs, WITMER violated Section 550.235(2), Florida Statutes. Witmer requested an administrative hearing on the Administrative Complaint. The matter was referred to the Division of Administrative Hearings and docketed as DOAH Case No. 93-6638. Witmer appealed the Emergency Order of Suspension to the Fourth District Court of Appeal. On February 2, 1994, the Fourth District rendered a decision quashing the Emergency Order of Suspension. In its opinion, the Fourth District stated, among other things, the following: Petitioner points to two defects in the conspiracy allegations. First, he argues that the complaint/order fails to specifically allege that he ever offered to administer Clenbutoral to a race horse for the purpose of affecting the outcome of a race. The Department charges that the offer to administer the drug violated section 550.235(2), Florida Statutes, and Florida Administrative Code Rule 61D-1.002(18). Both require that the allegedly prohibited behavior involve racing or a race animal. Section 550.235(2) requires that the conspiracy be directed toward affecting the outcome of a race and that the attempted administration of medication be to a race animal: "Any person who attempts to affect the outcome of a horserace or dograce through administration of medication or drugs to a race animal as prohibited by law; who administers any medication or drugs prohibited by law to a race animal for the purpose of affecting the outcome of a horserace or dograce; or who conspires to administer or to attempt to administer such medication or drugs is guilty of a felony of the third degree. " (Emphasis supplied.) Administrative rule 61D-1.002(18) provides that the alleged fraudulent acts be committed in relation to racing: "No person shall conspire with any other person for the commission of, or connive with any other person in any corrupt or fraudulent practice in relation to racing or jai alai nor shall he commit such an act on his own account." (Emphasis supplied.) The complaint/order alleges only that the petitioner conspired with "Herman Berger, a horse owner" to obtain and administer Clenbutoral to "the horse." Nowhere is Mr. Berger identified as a "race horse owner" or alleged to be involved in any way with horse racing. And nowhere is the horse in question identified in any manner or alleged to be a "race horse." The failure to allege an essential element of a violation renders the complaint and emergency order facially insufficient. . . . Although the petitioner has not raised this as a defect, there is an additional problem with the Department's allegation that Clenbutoral is an unlawful substance. The order states that Clenbutoral is not approved in the United States and that it is an illegal substance under 1992 Fla.Law ch. 69 (reenacted as section 499.03, Florida Statutes (1993)). However, this section does not make any substance illegal; it simply prohibits unauthorized persons from possessing or delivering certain categories of drugs (including new drugs which are not in general use and experimental drugs) without a valid prescription. The section specifically exempts licensed practitioners and permit holders from its provisions. Ch. 92-69, Laws of Fla. (reenacted as section 499.003, Florida Statutes (1993)). Nowhere in the complaint/order has the Department alleged that the petitioner lacks the necessary license and/or permit that would allow him to lawfully dispense or administer Clenbutoral. The petitioner also argues that the complaint/order fails to allege any agreement between the petitioner and Mr. Berger to commit the violation. The Department argues that it has alleged that the petitioner "offered" to administer an illegal drug and that this allegation is sufficient to put petitioner on notice that he is charged with conspiracy. Agreement is a necessary element of the crime of conspiracy, which is defined as an express or implied agreement of two or more persons to engage in a criminal or unlawful act. . . Because the Department has not alleged agreement, at most the complaint/order charges solicitation, which is defined as the enticement or encouragement of another to commit a crime even if the other has no intention to follow through. . . But neither section 550.235 nor rule 61D-1.002(18) prohibits the act of soliciting a crime or violation, only the commission of the substantive offense and/or conspiracy to commit the offense. . . . Witmer v. Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering, 631 So.2d 338, 341-42 (Fla. 4th DCA 1994). In a subsequent decision (rendered on October 25, 1995), in an appeal taken by Witmer of a final order of the Division of Administrative Hearings denying his challenge to certain Department rules, including Rule 61D-1.002(18), Florida Administrative Code, the Fourth District Court of Appeal held that Rule 61D-1.002(18), "because of its vagueness, . . . [wa]s an invalid exercise of delegated legislative authority." Witmer v. Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering, 662 So.2d 1299, 1302 (Fla. 4th DCA 1995). On May 31, 1996, the Department issued an Amended Administrative Complaint against Witmer, which it filed in DOAH Case No. 93-6638 after receiving leave to do so. In its motion requesting leave to file said Amended Administrative Complaint, the Department asserted the following: The original Administrative Complaint filed in this cause alleged three (3) counts. Two of those counts were effectively dismissed by the Fourth District Court of Appeal decision in the case of Witmer v. Department of Business and Professional Regulation, 662 So.2d 1299 (Fla. 4th DCA 1995), also referred to as Witmer II. The third [and only remaining viable count], conspiring to affect the outcome of a horserace through the administration of medication or drugs, was roundly criticized by the appeals court because of its failure to include an allegation of an "agreement." Witmer v. Department of Business and Professional Regulation, 631 So.2d 338 (Fla. 4th DCA 1994), also referred to as Witmer I. The [Department] believes that it has remedied the defects in the original conspiracy count by substituting an Amended Administrative Complaint (incorporating the conspiracy count only) for the original complaint filed in this cause. . . . The Department's Amended Administrative Complaint contained the following allegations: On November 11, 1992, Witmer met with Herman Berger, a horse owner, William Palmer, an owner and driver, Gracie Lane, Palmer's groom, and undercover officer James Gabriel at Pompano Park Harness Track in Broward County, Florida, and did at that time discuss, in relation to racing, the use of "Clenbuterol" on the racehorse "Yankee Roughneck." "Clenbuterol" is a bronchodilator used to improve performance of racehorses and is an illegal drug not approved for use in the United States. On November 11, 1992, in the same discussion, Witmer provided a "source" for the drug, (Harris), a blacksmith at the Trotting Center, who sells the drug and gave directions to the Trotting Center. Further, Witmer provided the name of Dave Hackwell, and said to mention him (Hackwell) as the person who said they could get some "stuff" from Harris. On April 2, 1993, Witmer met with James Gabriel in the presence of Herman Berger at Pompano Park Harness Track at which time he was reminded of the earlier discussion concerning the use of "Clenbuterol" on the racehorse "Yankee Roughneck." Witmer agreed that if "Clenbuterol" was brought to him, he would download it into a syringe, keep the syringe and administer "it" to the racehorse. Section 550.235(2), Florida Statutes, states: "Any person who attempts to [a]ffect the outcome of a horserace or dograce through the administration of medication or drugs; or who conspires to administer or attempt to administer such medication or drugs is guilty of a felony of the third degree.["] Count I The Petitioner hereby realleges numbered paragraphs 1 through 6. Beginning on November 11, 1992 and continuing through April 2, 1993, Witmer did conspire and agree with Herman Berger and/or William Palmer to provide a source for the purchase of "Clenbuterol," an illegal drug, and in furtherance of the conspiracy did agree to download the drug into a syringe and administer it to a horse participating in a race meeting at Pompano Park Harness Track for the purpose of affecting the outcome of a horserace. By conspiring to bring the drug, "Clenbuterol" onto the grounds of Pompano Park Harness Track, to administer it to a horse participating in a race meeting for the purpose of affecting the outcome of a horserace, Witmer violated Section 550.235(2), Florida Statutes. On July 31, 1996, the Department filed a Notice of Voluntary Dismissal in DOAH Case No. 93-6638. On that same day, the undersigned issued an Order Relinquishing Jurisdiction and Closing File in that case.
The Issue The Petitioner has accused Respondent, Francis Clifford Joyce, with a violation of Rule 7E-1.06(11)(a), Florida Administrative Code, which reads: (a) The running of a horse in a race with any narcotic, stimulant, depressant or local anesthetic is prohibited. If the stewards shall find that any narcotic, stimulant, depressant or local anesthetic has been administered or attempted to be administered, internally or externally, to a horse before a race, such stewards/ shall impose such punishment and take such other action as they may deem proper under any of the rules, including reference to the Division, against every person found by them to have administered, or to have attempted to administer, or to have caused to be administered, or to have caused an attempt to administer, or to have conspired with another person to administer, such narcotic, stimulant, depressant or local anesthetic. If the Division laboratory shall find a positive identification of any such medication, such finding shall constitute prima facie evidence that such horse raced with the medication in its system. Under the accusation, the Respondent is made responsible pursuant to the provisions of Rule 7E-1.18(3), Florida Administrative Code, which indicates that "The trainer shall be responsible for, and be the insurer of the conditions of the horses he enters. Trainers are presumed to know the rules of the Division." Specifically, Respondent Joyce is accused under facts that allege that on December 2, 1978 the horse Sensinita, trained by the Respondent, did race in the tenth (10th) race at Tropical Park Inc., finishing in the second (2nd) position. Subsequent to the race on the same date, a urine specimen was taken from the horse, Sensinita, and assigned sample number 509910A, and that specimen was allegedly analyzed by the Petitioner's laboratory. It is further alleged that on February 20, 1979, the Division of Pari-Mutuel Wagering laboratory reported the results of the test and that report showed that the urine sample contained Despropionyl Fentanyl, which is classified as a derivative of Fentanyl, a narcotic.
Findings Of Fact This cause comes on for consideration based upon a Notice to Show Cause (Administrative Complaint) filed by the Petitioner, State of Florida, Department of Business Regulation, Division of Pari-Mutuel Wagering, against Francis Clifford Joyce. At all times pertinent to the Administrative Complaint, Francis Clifford Joyce was a holder of License Numbers K-4547, K-4201 and K-575 issued by the Petitioner to Respondent, Francis Clifford Joyce, to operate as a horse trainer for horses racing at the various race tracks located in the State of Florida. The Petitioner, State of Florida, Department of Business Regulation, Division of Pari-Mutuel Wagering, is an agency of the State of Florida charged with the duty of the regulation of, among other things, the matters pertaining to thoroughbred horse racing in the State of Florida. The authority for such regulation is found in Chapter 550, Florida Statutes, and those rules promulgated to enforce the provisions of that chapter. Included in that body of rules are Rule 7E-1.06(11)(a) and 7E-1.18(3), Florida Administrative Code, alluded to in the issue statement of this Recommended Order. Those rules as set out in the issue statement shall serve as a basis for determining the facts and reaching the legal conclusions necessary to formulate a decision in this matter and official recognition is taken of the aforementioned rules. Facts in the case reveal that the Respondent, Francis Clifford Joyce, was operating in his capacity as a trainer on December 2, 1978, at the Tropical Park, Inc. race course in Florida. On that date a horse for which he was the trainer, named Sensinita, ran in the tenth (10th) race and finished in second (2nd) place. On the date of the race and prior to the race the horse was seen and treated by a veterinarian, Carl J. Meyer, DVM. This included a treatment for a condition which Dr. Meyer described as Myopathy. In actuality, Dr. Meyer injected the horse with Sublimaze under the guise of treating the horse for Myopathy. A urine sample taken from the horse shortly after the conclusion of the race and on the same data as the race was examined by a series of tests, and the urine sample revealed a positive identification of a substance known as Despropionyl Fentanyl, which is classified as a derivative of Fentanyl, a narcotic. This particular narcotic, Fentanyl, metabolizes to become Despropionyl Fentanyl, a central nervous system stimulant in horses. The trade name for Fetanyl is Sublimaze. The Respondent did not know that Dr. Meyer had injected Sensinita with the substance, Sublimaze, on the date of the race. Respondent had made inquiry of Dr. Meyer concerning treatment for Myopathy in October, 1978, related to the horse, Hawaiian Gardens. At that point, Dr. Meyer indicated that treatment for Myopathy was a treatment for the horse's nervous system. Subsequent to this discussion, the Respondent read an article related to allegations against other trainers who had been accused of violating the same provisions as set out in the present Notice to Show Cause, dealing with the same alleged narcotic. Among those individuals was one Frank Rudolph Solimena. Shortly after finding out about the allegations related to the other trainers, Respondent approached Dr. Meyer and asked him if he had given Hawaiian Gardens the same substance which Respondent thought Dr. Meyer might have given Solimena's horses. Dr. Meyer denied giving Hawaiian Gardens Sublimaze and told the Respondent not to worry about anything. The Respondent then became informed of a newspaper article claiming that the narcotic, Fentanyl/Sublimaze, had been given to his horse, Hawaiian Gardens, prior to running a race on October 16, 1978. Following this publication, a Notice to Show Cause was filed, a formal hearing was held and a Recommended Order was entered in DOAH. Case No. 79-228, now on review for final order. Prior to any notification by the Petitioner or through the media that a positive sample had bean allegedly detected in the test of the urine sample of Hawaiian Gardens, Respondent ceased to use Dr. layer to treat his horses and, effective December 4, 1978, the Respondent began using a Dr. Teigland, DVM. On or about February 20, 1979, Joyce received notice of the positive urine sample related to Sensinita's race which is the subject herein. On June 22 or 23, 1978, following the formal hearing on the subject of the horse, Hawaiian Gardens, and its race of October 16, 1978, Joyce again spoke with Dr. Meyer about his possible use of illegal narcotics in the horses Joyce was training. Dr. Meyer laughed and responded to the effect that the Respondent would not have a problem with prosecution for horses Meyer had treated. In summary, it is evident that Sensinita ran in the tenth (10th) race at Tropical Park, Inc. on December 2, 1978, at a time when the substance, Dispropionyl Fentanyl, was in its system and this had resulted from Dr. Meyer's infusion of Sublimaze. Joyce had no knowledge of Dr. Meyer's intentions on that date or the act of infusing the horse, nor did the Respondent have any reason to believe that the horse would be infused with Sublimaze.
Recommendation It is recommended that the case against the Respondent, Francis Clifford Joyce, related to the incident of December 2, 1978, involving the horse, Sensinita, be DISMISSED DONE and ENTERED this 5th day of September, 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, RICHMAR & GREER One Biscayne Tower 25th Floor Miami, Florida 33131 David M. Maloney, Esquire Francis Clifford Joyce Department of Business 1015 South 17th Avenue Regulation Hollywood, Florida 33020 725 South Bronough Street Tallahassee, Florida 32301
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.
Findings Of Fact The Division of Pari-Mutuel Wagering of the Florida Department of Business Regulation is an agency charged with responsibility for implementation and enforcement of the statutory framework governing the conduct of pari-mutuel operations in Florida. The Division's agency head is its Director. The Division has initiated proceedings to adopt rules to establish procedures whereby dog racing tracks and jai alai frontons will select dates for matinee performances. Proposed Rule 7E-2.03 relates to the scheduling of matinee programs by dog racing tracks. It provides in pertinent part: The application [the track's application for an annual license, operating dates, meetings and the number of performances] shall designate the matinee programs to be conducted by the association. Each association shall be permitted during its authorized meeting to conduct a maximum of 54 matinee programs on the days of its choice. Provided, however, that no association located in a county where there is a thoroughbred association or within a radius of 35 miles of another pari-mutuel association shall be permitted to conduct more than 3 matinee programs during any calendar week of its authorized meeting, except that a matinee program can be scheduled on New Year's Day, Memorial Day, July 4th, Labor Day and Thanksgiving Day. Provided, further, that in those counties where a thoroughbred association is authorized to have dark during its meeting all other pari-mutuel associations in the same county may conduct their matinee programs on any or all such dark days as long as the total for the respective association does not exceed 54 matinee programs. Proposed Rule 7E-3.03(32) relates to selection of matinee dates by jai alai frontons, and contains language that is functionally identical to Proposed Rule 7E-2.03. The effect of these proposed rules would be to allow dog racing tracks and jai alai frontons to schedule up to fifty-four matinee programs during their authorized operating dates. If the track or fronton is located in a county where there is a horse racetrack, no more than three matinee programs can be scheduled during any calendar week, except for the designated holidays. The Respondent conducted a public hearing with respect to the proposed rules on January 19, 1981. The Petitioners, Calder Race Course, Inc., and Tropical Park, Inc.; and the Intervenors Gulfstream Park Racing Association and Hialeah, Inc., are horse racetrack operators. These parties are affected by the proposed rules because the proposed rules would allow dog racing tracks and jai alai frontons to operate matinee programs at the same time that horse race programs are being run by these parties. The Intervenors WJA Realty; Biscayne Kennel Club, et al.; and St. Petersburg Kennel Club are operators of dog racing tracks or jai alai frontons. They are affected by the proposed rules because the proposed rules would allow dog racing tracks and jai alai frontons to operate matinee programs at the same time that horse race programs are being run by these parties. The horse racetrack parties are located in Dade County or Broward County, Florida. They conduct only daytime, matinee programs. The dog track and jai alai fronton parties, other than St. Petersburg Kennel Club, Inc., operate in Dade County and Broward County, Florida. They are all located within a radius of thirty-five miles of other pari-mutuel associations, and in the same county with thoroughbred associations. Prior to 1970, dog tracks and jai alai frontons in Southeast Florida conducted nighttime programs almost exclusively. Horse track operators conducted, and continue to conduct, only matinee programs. During the decade of the 1970's, dog tracks and jai alai frontons began conducting an increasing number of matinee programs under various regulatory systems imposed by the Division of Pari-Mutuel Wagering, or its predecessors. In 1978 the Division adopted a policy which is in all material respects identical to the policy that the Division is seeking to implement through the adopting of the rules which are the subject of this proceeding. While it appears to have been the Division's intent to adopt the policy as a rule in 1978, the policy was never formally filed with the Office of the Secretary of State, and was therefore not adopted as a rule. It has, nonetheless, been in operational effect since 1978. The Division's experience with the policy has been favorable. Dog track and jai alai fronton operators have chosen days for operating matinee programs which are most profitable. The State obtains revenue from these operations based upon a percentage of the "handle" or the dollar volume that goes through a facility on a given day. The more money an operation takes in, the more revenue the State obtains. The State's experience with the matinee policy has been favorable from a revenue generating perspective. Horse track operators are to some degree affected by having dog tracks and jai alai frontons operating conflicting matinee programs. The degree of this effect has not been established with any precision. Horse track operators have experienced operational difficulties during the past decade. Many factors have contributed to these difficulties. It has not been established that having matinee competition from dog tracks and jai alai frontons has been a significant factor. Various statistics were presented by the parties in an effort to show either that matinee competition has resulted in a diminution of the handle of horse racetracks, or the contrary. The statistics were not prepared in such a manner as to isolate the impact of matinee competition upon the revenues of horse racetracks. Even if any such findings could be isolated from the statistics that have been presented, the conclusions would be conflicting. Certainly having competition drains some customers from horse racetracks. The extent of this impact cannot, however, be determined from the evidence presented in this proceeding.
Findings Of Fact On or about November 1, 1982, Respondent applied for and received a pari-mutuel wagering occupational license, number P-5122, as a thoroughbred horse owner. Respondent participated as a horse owner at the 1982-83 race meeting at Tampa Bay Downs, an association licensed by Petitioner. Respondent's trainer was Betty Hilt who was assigned stalls at that race track in barn 21. Tampa Bay Downs is a member of the Thoroughbred Racing Association. The Thoroughbred Racing Protective Bureau is a private agency which performs investigative and security services at the Thoroughbred Racing Association's member race tracks. In early February, 1983 the Thoroughbred Racing Protective Bureau assigned two of its Task Force agents, Gary W. Dresser and Anthony Ortero, to investigate allegations from an undisclosed source that Respondent was administering, with hypodermic syringes, medications to horses on the grounds of Tampa Bay Downs. Dresser began undercover surveillance of the Respondent on or about February 4, 1983. Dresser obtained a pari-mutuel occupational license and a job working in barn 20 at Tampa Bay Downs, a barn across from barn 21 and approximately 60 feet away. On February 16, 1983 Dresser and Ortero set up surveillance in an automobile. Only Dresser used binoculars to observe Respondent. Groom Diane Schully exited a stall followed by Respondent. Schully was leading a horse toward the paddock area, and Respondent was walking in the opposite direction toward his truck. Respondent stopped, turned, and called to Schully; Schully and the horse she was leading stopped; and Respondent then walked toward Schully and the horse. As he walked, Respondent removed an object from his coat pocket. Dresser observed what appeared to him to be the plunger of a syringe, but Ortero was not sure that the object in Respondent's hand was a syringe. As Respondent reached the side of the horse, both Dresser's view and Ortero's view were blocked. 6 At approximately 3:00 p.m. on February 21, 1983 Dresser and Ortero again had Respondent under surveillance. They were both sitting in an automobile, and only Dresser was using binoculars. Both agents observed, Respondent exit one of the stalls in barn 21 with trainer Betty Hilt. Both agents saw Respondent carrying a syringe with the plunger pulled out, indicating it was still full of liquid of some type. However, Dresser who was using binoculars does not know if the syringe had a needle attached to it, and Ortero, who was not using binoculars, only assumes the syringe had a needle attached because he saw the sunlight glint off something and assumes that it was a needle on the end of a syringe. Interestingly enough, Dresser saw the syringe in Respondent's right hand, but Ortero saw the syringe in Respondent's left hand. On neither occasion did either agent confiscate or otherwise obtain a syringe that was observed in Respondent's possession, although agents searched the barn area assigned to trainer Hilt after the observation made on February 21, 1983 and found nothing.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is recommended that a final order be entered dismissing with prejudice the Amended Administrative Complaint filed against the Respondent herein. RECOMMENDED and ORDERED this 14th day of January, 1985, in Tallahassee, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 14th day of January, 1985. COPIES FURNISHED: Elliot Henslovitz, Esquire Division of Pari-Mutuel Wagering 1350 NW 12 Avenue, Room 332 Miami, Fl. 33136 Bruce D. Green, Esquire 2610 Oakland Park Boulevard Ft. Lauderdale, Fl. 33311 Robert Smith Director Division of Pari-Mutuel Wagering State Office Building 1350 NW 12 Avenue Miami, Fl. 33136
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 presented is whether Respondent is guilty of the allegations contained in the Administrative Complaint filed against him, and, if so, what disciplinary action should be taken against him, if any.
Findings Of Fact At all times material hereto, Respondent Philip J. Aleong has been licensed as a veterinarian in the State of Florida, having been issued license number VM 6466. Respondent has performed an average of 200 pre-purchase examinations of horses per year for the last ten years. In April 2003, John A. Damico, through his trainer Buddy Edwards, requested Respondent to perform a pre-purchase examination of a 2-year-old thoroughbred race horse identified with OBS Hip #512 at the Ocala Breeders Sale. Respondent did so. After the pre-purchase examination was performed, Damico purchased the race horse identified as OBS Hip #512 and named the horse "C. Brooke Run." The pre-purchase examination performed by Respondent consisted of an endoscopic evaluation, an evaluation of the horse jogging, and an examination of radiographs taken by Respondent of C. Brooke Run. As a horse in a pre-purchase examination has a limited veterinarian/patient relationship, limited records are kept by the examining veterinarian. For the purpose of a pre-purchase examination, sufficient medical records could consist of the horse's Hip number, the sale date of the horse, and a few words regarding the endoscopic examination of the horse, the short jogging of the horse, and the results of the radiographs taken of the horse. It is sufficient, therefore, if appropriate that the medical records simply note that the endoscopic examination and the jogging were normal and the radiographs showed no abnormalities. The average time spent reviewing radiographs taken at a pre-purchase examination is less than 30 seconds per film. During his pre-purchase examination of C. Brooke Run, Respondent took the necessary number of radiographs to perform a proper examination, including four radiographs of C. Brooke Run's left knee. During his pre-purchase examination of C. Brooke Run, Respondent contemporaneously created a medical record by noting in a notebook the results of the pre-purchase examination. After examining the radiographs taken, observing the horse jog, and performing an endoscopic examination of C. Brooke Run, Respondent determined that the horse had no medical problems or injuries. Between April 2003, when the pre-purchase examination was performed, and September 10, 2003, Damico, the horse's owner, raced the horse on July 20, August 22, and August 29. In addition to racing the horse three times, the horse's trainer worked out the horse at least six times. The trainer would not have worked out the horse or allowed it to race if he believed the horse had an injury. On September 10, 2003, C. Brooke Run suffered a "breakdown" that was determined to be caused by fractures in the horse's left knee. After the breakdown, Damico alleged that Respondent should have detected the fractures in the horse's left knee five months earlier during the pre-purchase examination performed by Respondent and that, since Respondent did not, Damico was damaged. Without admitting any liability or negligence in performing the April 2003 pre-purchase examination of C. Brooke Run, Respondent, through his insurance carrier, paid Damico in full for all alleged damages incurred by Damico as a result of C. Brooke Run "breaking down." Petitioner's expert witness opined that any injury sustained by C. Brooke Run may very well have been sustained after the pre-purchase examination performed by Respondent and that the radiographs taken of C. Brooke Run might or might not have revealed any medical problems or injuries. Respondent cannot locate his notebook where he created his medical record on C. Brooke Run at the time of the pre- purchase examination. Further, by February 10, 2005, he was only able to produce an invoice for services rendered for the radiographs of the horse's knees, hocks, and front ankles, and for the endoscopic examination he performed. After the horse broke down, Damico requested that Respondent provide him with the radiographs Respondent took on C. Brooke Run. Respondent's secretary pulled out from the files the original radiographs and sent them to Damico, who wrote on the envelope that he received 22 radiographs. After showing those original radiographs to his local veterinarian, Damico forwarded them to the University of Florida. After the envelope was returned to Damico from there, he then sent those originals to Respondent's insurance company, assumedly as part of his claim. No evidence was presented as to where the radiographs traveled from there. By the time of the final hearing in this cause, the envelope still contained 22 radiographs. However, two of them were for a different horse than C. Brooke Run, and one of them was too dark to read.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding Respondent not guilty of the allegations in Count One, guilty of the allegations in Count Two of the Administrative Complaint, issuing a reprimand, and imposing an administrative fine of $1,000 to be paid by a date certain. DONE AND ENTERED this 23rd day of January, 2008, in Tallahassee, Leon County, Florida. S LINDA M. RIGOT 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 23rd day of January, 2008. COPIES FURNISHED: Bradford J. Beilly, Esquire Bradford J. Beilly, P.A. 1144 Southeast Third Avenue Fort Lauderdale, Florida 33316 Drew F. Winters, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Juanita Chastain, Executive Director Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Ned Luczynski, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
