The Issue Whether Petitioners are entitled to exceed the twenty percent cap on simulcasts.
Findings Of Fact The Department is the state agency charged with the responsibility of regulating pari-mutuel facilities within the State of Florida. The Department also regulates, pursuant to Chapter 550, Florida Statutes, simulcast broadcasts of pari-mutuel events which are imported into the state at pari-mutuel facilities located within Florida. Such broadcasts are permissible and are subject to statutory taxes depending on the type of event and the applicable percentages of tax on the wagers received. Such amounts may vary depending on facility and type of event. Thoroughbred racing permit holders may simulcast thoroughbred races conducted at out-of-state thoroughbred tracks. Similarly, a harness racing facility may simulcast harness races conducted at out-of-state harness tracks. Theoretically, greyhound clubs may simulcast greyhound races conducted out-of- state and jai alai may simulcast jai alai matches from out-of-state. In each instance, the Florida pari-mutuel permit holder may send the simulcast signal to any pari-mutuel permit holder within the state. Historically, the number of the races which could be imported from out- of-state to be broadcast at a Florida permit holder location was capped at twenty percent. A permit holder could exceed this limitation with approval from the Department when it was in the best interests of racing and would promote live racing and purse distribution. Petitioner, Calder Race Course, Inc. (Calder), is a thoroughbred racing pari-mutuel permit holder fully authorized by the Department to conduct live races during its racing meet. Its racing facility is located in Miami, Florida. In June, 1995, Calder first requested permission to conduct full card simulcasting pursuant to Section 550.3551(6), Florida Statutes. That request, covering racing dates remaining for the 1995-1996 racing season, was denied. Moreover, Calder's request for an administrative hearing to challenge the denial was also denied. Calder's successful appeal to the district court of appeal ultimately resulted in this matter, DOAH case no. 95-6180, being referred to the Division of Administrative Hearings for formal proceedings. In December, 1995, Calder again filed an application to exceed the twenty percent full card simulcast limitation for its 1996-1997 racing season. Again, the Department denied the request. Having the benefit of the appellate decision, the Department referred the matter, DOAH case no. 96-1348, to the Division of Administrative Hearings for formal proceedings. Petitioner, Tampa Bay Downs, Inc. (TBD), is a thoroughbred racing pari-mutuel permit holder fully authorized to conduct live races during its racing season. Its racing facility is located in Oldsmar, Florida. In September, 1995 and January, 1996, TBD applied for full card simulcasting for its racing meet. Consistent with its response to Calder's request, the Department denied the TBD applications and referred the matter to the Division of Administrative Hearings for formal proceedings, DOAH case nos. 96-0025 and 96-1351. Petitioner, Tropical Park, Inc. (Tropical), is a thoroughbred racing pari-mutuel permit holder that is fully authorized to conduct live races during its racing season. It shares the Calder facility in Miami but has a different racing meet. Like Calder, Tropical filed for full card simulcasting for its 1996- 1997 racing meet and was denied by the Department. Its petition for formal proceedings has been designated DOAH case no. 96-1349. Petitioner, Gulfstream Park Racing Association, Inc. (Gulfstream) is a thoroughbred racing pari-mutuel permit holder fully authorized to conduct live races during its racing season. Gulfstream is located in Hallandale, Florida. On or about January 3, 1996, Gulfstream filed an application with the Department for authorization to exceed the twenty percent limitation on simulcasts. This application was for the 1996-1997 racing season with a race meet running from January 3, 1997 through March 16, 1997. The Department denied Gulfstream's application. Such denial, DOAH case no. 96-1350, was timely opposed by Gulfstream. Petitioner, PPI, Inc., d/b/a Pompano Park Racing (Pompano), is a harness racing pari-mutuel permit holder that is fully authorized to conduct live harness races during its racing season. Pompano is located in Pompano Beach, Florida. On or about December 20, 1995, Pompano filed an application with the Department for authorization to exceed the twenty percent limitation on simulcasts. This application was for Pompano's 1996-1997 racing season. The Department denied Pompano's application. Such denial, DOAH case no. 96-1392, was timely opposed by Pompano. Petitioner, the Florida Thoroughbred Breeders' Association, d/b/a the Florida Thoroughbred Breeders' and Owners' Association (Breeders), is a nonprofit corporation with its principal place of business located in Ocala, Florida. This Petitioner represents Florida owners and breeders of thoroughbred race horses. The Breeders maintain that denying simulcasting in excess of the twenty percent limitation adversely impacts the amounts which must be paid as the breeder's percentage of the wagers made at pari-mutuel facilities. Thus, Florida breeders lose income which simulcasting in excess of the cap would contribute to breeders' awards. The Intervenors are greyhound pari-mutuel permit holders who opposed full card simulcasting in excess of the statutory twenty percent limitation. Such Intervenors did not oppose the importation of the broadcast signals to a specific pari-mutuel location, but opposed its unbridled rebroadcast to pari- mutuel facilities within the state as allowed by law. Before the hearing in this cause was completed and on the last day of the 1996 regular session, the Legislature enacted CS/HB 337. Such bill became law without the Governor's signature and went into effect on July 1, 1996. The new law made numerous amendments to Chapter 550, Florida Statutes. Among the changes was the removal of the twenty percent limitation on simulcast wagering for pari-mutuel permit holders. On May 16, 1996, the Department issued a letter to all pari-mutuel wagering permit holders that provided, in pertinent part: In light of this omnibus legislation which addressed the concerns of the entire pari- mutuel industry including the issues surrounding full-card simulcasting, the Division of Pari-Mutuel Wagering (Division) believes it is in the best interest of Florida racing to immediately allow full- card simulcast wagering until June 30, 1996 pursuant to the Division's discretion set forth in subsection six of Section 550.3551, Florida Statutes. Accordingly, any pari-mutuel wagering permitholder whose annual license currently authorizes them to conduct live performances at any time during the period of May 17, 1996 through June 30, 1996 may receive broadcasts of like-kind events conducted at facilities outside this State at the race- track, dog track, or jai-alai enclosure of the licensee during any live performance authorized by the permitholder's annual license. On June 30, 1996 the privilege granted by this letter terminates; thereby, ending any authorization to exceed the twenty-percent limitation on simulcast wagering for all permitholders within the State. Full-card simulcast wagering authorized and regulated pursuant to the provisions in the Committee Substitute for House Bill 337 becomes effective on July 1, 1996. Thereafter, the Department filed a motion to dismiss Petitioners' requests for formal administrative hearing due to mootness. The Intervenors have supported the Department's motion to dismiss. The Petitioners, with the exception of Gulfstream which wanted the hearing and the administrative process to be completed, filed a motion to abate so that the 1996-1997 racing season may be completed before a determination is made as to the mootness of the issue.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That the Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering, enter a final order approving all full card simulcasting applications for which days remain in the Petitioner's racing meet. All other applications are deemed moot as the racing meets have expired. DONE AND ENTERED this 30th day of October, 1996, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 30th day of October 1996. COPIES FURNISHED: Alexander H. Twedt, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Harry R. Detwiler, Jr., Esquire John M. Alford, Esquire ALFORD & DETWILER 1106-6 A Thomasville Road Tallahassee, Florida 32303 Wilbur E. Brewton, Esquire Lee M. Killinger, Esquire Gray, Harris & Robinson, P.A. 225 South Adams Street, Suite 250 Tallahassee, Florida 32301 (Attorneys for Calder Race Course, Inc. and Tropical Park, Inc.) Howell L. Ferguson, Esquire Cindy L. Bartin, Esquire LANDERS & PARSONS Post Office Box 271 Tallahassee, Florida 32302 (Attorneys for Tampa Bay Downs, Inc.) Gary R. Rutledge, Esquire Harold F.X. Purnell, Esquire Rutledge, Ecenia, Underwood, Purnell & Hoffman, P.A. Post Office Box 551 Tallahassee, Florida 32302 (Attorneys for the Intervenors) David S. Romanik, Esquire ROMANIK, LAVIN, HUSS & PAOLI 1901 Harrison Street Hollywood, Florida 33020 (Attorneys for Gulfstream Park Racing Association, Inc.) Warren H. Husband, Esquire Messer, Caparello, Madsen, Goldman & Metz, P.A. Post Office Box 1876 Tallahassee, Florida 32302-1876 (Attorneys for Florida Thoroughbred Breeders' Association) Alan B. Koslow, Esquire David H. Reimer, Esquire BECKER & POLIAKOFF, P.A. Post Office Box 9057 Fort Lauderdale, Florida 33310-9057 (Attorneys for PPI, Inc.) Lynda L. Goodgame General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Royal H. Logan Acting Director Pari-Mutuel Wagering Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The first issue is whether the Greyhound Veterinary Assistant Procedures Manual published by the Division of Pari- Mutuel Wagering ("Division Manual") constitutes an unadopted rule in violation of section 120.54(1)(a), Florida Statutes (2014).1/ Petitioner further contends that the agency materially failed to follow applicable rulemaking procedures with respect to the Division Manual; that it is vague, fails to establish adequate standards for agency decisions, invests unbridled discretion in the agency; and is arbitrary and capricious, in violation of sections 120.52(8)(a), (d), and (e). A second issue is whether Florida Administrative Code Rule 61D-6.002 is an invalid exercise of delegated authority because it enlarges, modifies, or contravenes the provisions of section 550.0251(3), Florida Statutes; is vague, fails to establish adequate standards for agency decision, or vests unbridled discretion in the agency; or is arbitrary and capricious, in violation of sections 120.52(8)(c), (d), and (e). Petitioner further contends that rule 61D-6.002 violates Petitioner's due process rights and is therefore unconstitutional.
Findings Of Fact Petitioner, Mr. Robert Dawson, is the holder of an Unrestricted U-1 Professional Pari-Mutuel License authorizing him to train racing greyhounds pursuant to section 550.105, Florida Statutes. Mr. Dawson is subject to chapter 550 and the administrative rules promulgated thereunder in Florida Administrative Code Chapter 61D. Respondent, the Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering ("Division"), is a state agency delegated the responsibility for the implementation and enforcement of Florida's pari-mutuel laws under chapter 550, including the licensing and regulation of all pari-mutuel activities in Florida. In the past, the Division used to take urine samples from dogs after a race, usually from the winner. The dogs to be tested would be announced, and the owner or his representative could then witness the sample collection and sign indicating that he had witnessed the sample being taken. In late 2008, the Division changed the procedures that it follows and began to take pre-race samples. Mr. Jorge Callejas testified that many dogs tend to urinate prior to the race, and it was noted that, after a race, they were tired and not as interested in urinating. The Division had monitored statistics and found that with post-race collections, the number of samples that did not have a sufficient quantity for testing was very high. After switching to pre-race testing, the number of untestable samples went down significantly. At that time, they began using an earlier version of the Division Manual, which sets forth procedures to be followed by veterinary assistants employed by the Division working with the racing greyhound program. The Division now conducts random pre-race urine sample collections at all of its licensed greyhound race tracks. The Division uses the Division Manual at all greyhound racing facilities in the state of Florida. The Division provides the Division Manual to its veterinary technicians working at the licensed greyhound race tracks. The Division Manual was last amended on March 31, 2010. The Division Manual is properly attributable to the Division as an institution. The Division filed two administrative complaints against Mr. Dawson for violations of section 550.2415, which are pending before DOAH with case numbers 14-4450PL and 14-4719PL. Trainers of dogs with a positive urine test can face severe sanctions. As a greyhound trainer, Mr. Dawson's responsibilities include feeding the dogs, examining them for injuries, keeping them at the proper weight, preparing them for weigh-in before each race, and keeping them healthy. Occasionally, he also personally takes the dogs to the track. On a race day, the dogs are typically walked, cleaned up by a kennel helper, weighed-in, and then given to the "leadouts." Leadouts are not employed by the individual kennels, but are employed by the track. The leadouts place the dogs in the ginny pit area, sometimes called the lock-up, an area where the dogs stay until their scheduled race. Trainers and kennel helpers are not allowed in the ginny pit area. Trainers and helpers therefore have no access to their dogs for an extended period of time until the race begins and have no control over the employees of the track (leadouts and kennel master) who do have access to the dogs during that time. Pre-race urine specimens are randomly taken from dogs in an outdoor, fenced area adjacent to the ginny pit building by veterinary assistants employed by the Division. This area is open to view by the public, including trainers or their helpers, but only track employees and Division personnel are allowed access to the area. The area where trainers have to be to pick up their dogs is on the opposite side of the building, and from this location, the view of the open area where samples are taken is blocked by the building. Trainers and helpers are routinely occupied with their other dogs and do not have time to watch the pre-race sample collection, especially since they do not know if one of their dogs will be sampled or not. The Division does not individually notify each trainer of record or kennel worker for racing animals when random pre- race urine collection will occur. Trainers and kennel workers are not advised that their greyhounds are going to be tested on a particular day. The Palm Beach Kennel Club does not have video cameras in place that would allow trainers or their helpers to view the dogs while they are in the ginny pit area. Mr. Arthur Agganis, as president of the Palm Beach Greyhound Association, petitioned the general manager to put in some cameras, at the association's expense, but no cameras have been installed. There is a camera in the open area where samples are collected, but trainers and helpers cannot view the feed from this camera. In horseracing, horse trainers are not prohibited from physically accessing their horses prior to the start of each horse's race. As the southern regional manager of greyhound tracks, Mr. Callejas visits the tracks under his responsibility and ensures that each track is following the Division Manual's sampling and testing procedures, including the chain-of-custody procedures. Ms. Jill Blackman testified that the Division Manual was a guideline used for training veterinary assistants in the field. Section 3 of the Division Manual ("Section 3") consists of nine subsections: 3.1 Greyhound Sampling Priority; 3.2 The Collection Process; 3.3 Meeting and Identifying the Greyhound; 3.4 Collecting the Specimen; 3.5 Sealing the Sample; 3.6 Completing the Required Forms; 3.7 Storing the Sample; 3.8 Preparing Samples for Shipment; and 3.9 Shipment of Samples. After the veterinary assistant identifies the dog and collects the sample, the sample is sealed in the cup with evidence tape, labeled, and taken to a freezer in the veterinary assistant's office, where it is locked up. Section 3 does not require the Division to advise trainers of when urine sample collection occurs. Section 3 does not require the Division to ensure that the trainer witness the urine sample collection process or to ensure that the Division obtain the trainer's signature on the specimen card. The Division Manual states on page six that one of the primary duties of the veterinary assistant is to "study and put into practice the procedures outlined in this manual." It goes on to emphasize the importance that all those collecting urine samples understand the proper procedures, and "follow those procedures EACH AND EVERY TIME." Section 3 states at page ten, "Those collecting samples must follow strict chain-of-custody procedures in order to stand as credible evidence in a judicial proceeding." It then goes on to prescribe a "strict sequence of events" that must be followed to ensure that samples are properly collected, sealed, and secured to avoid tampering or alteration. It sets forth procedures to correctly identify a greyhound by the numbers tattooed on its ear, prepare required forms, store collected samples, prepare them for shipment, and maintain the security of the backside areas. Division employees do not have discretion not to follow the Division Manual; its provisions are mandatory and enforced by the Division. The integrity of greyhound racing in Florida is important to citizens betting on the outcome of races and to the dog owners, trainers, and other employees who earn their livelihood in the industry. The procedures followed to collect samples and otherwise ensure the integrity of the sport are important to dog trainers and to the public. A notice of rule development for existing rule 61D- 6.005, entitled Procedures for Sampling of Racing Animals, has been published. Mr. Dawson, as a dog trainer subject to possible discipline under the "absolute insurer" rule, 61D-6.005, is substantially affected by the sample collection and testing procedures of Section 3. He has alleged a real and sufficiently immediate injury in fact. Chapter 550 contains procedures such as "split sampling" to protect trainers and ensure integrity of the testing process, and Mr. Dawson comes within the zone of interest of chapter 550. In his petition, Mr. Dawson sufficiently alleged that Section 3 of the Division Manual was an unadopted rule and attached a copy of it to his petition. Section 3 constitutes a rule within the definition of section 120.52(16). Section 3, or a substantially similar statement reflecting the Division's sample collection process for racing greyhounds, has not been adopted as a rule under chapter 120. It is practicable and feasible to adopt Section 3 as a rule. Rule 61D-6.005 is uniform in its application and effect. The rule is not vague, does not fail to establish adequate standards for Division decisions, or vest unbridled discretion in the Division. The rule is not arbitrary or capricious.
The Issue Whether Respondent violated Sections 550.235(1), 550.235(2), and 550.25415(8), Florida Statutes, and if so, what penalty should be imposed.
Findings Of Fact Respondent, Dr. Michael J. Carinda (Dr. Carinda), is a veterinarian licensed in the State of Florida. He holds pari- mutuel wagering occupational license number 0906873 1081 97, first issued by Petitioner, Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering (Division), in 1989. Petitioner is the agency responsible for the regulation of the horse racing industry in Florida. At all times pertinent to this proceeding, Dr. Carinda was an employee of Plante & Associates and performed his duties under the direction of Dr. Paul R. Plante, a veterinarian. At all times pertinent to this proceeding, Dr. Carinda worked as a veterinarian at the Pompano Park Harness Track (Pompano Track) in Pompano Beach, Florida, as an employee of Plante & Associates. James Gabriel is and has been a detective with the Fort Lauderdale Police Department for 17 years. During 1993, Detective Gabriel worked undercover at the Pompano Track in an investigation of race fixing allegations at the Pompano Track. While undercover, Detective Gabriel posed as a convicted felon who was the owner in fact of the horse named Yankeeroughneck. A convicted felon is not allowed to register a horse in his name; therefore, Yankeeroughneck was registered under the name of Herman Berger, who was licensed by Petitioner. Mr. Berger, one of the targets of the undercover investigation, did not know that Gabriel was an undercover detective. Gabriel's undercover investigation lasted approximately one year and was electronically monitored so that conversations in which Gabriel was a part were taped recorded without the knowledge of the other participants in the conversations. At all times relevant to this proceeding, Yankeeroughneck was a standard bred horse, racing at the Pompano Track. At all times relevant to this proceeding, Dr. Plante held an occupational license issued by Petitioner and provided veterinary care to horses racing at the Pompano Track. On the morning of May 24, 1993, Detective Gabriel engaged in the following conversation with Dr. Plante and Herman Berger. Plante: If the horse the ah, had he been milkshaked before did he race well when he was milkshaked? Not every horse races well when they get bagged. (Unintelligible) Berger: He came, he raced but not the way he supposed to. Plante: I'll speak with Charlie tomorrow morning. Well, the only thing to do is to try it one start. Berger: Yes. Plante: Not that expensive to do. Berger: Exactly. Plante: If the horse improves. Berger: Alright. Gabriel: How long does it take before we do something like that for (Unintelligible.) Plante: Two and a half hours before the race. * * * Plante: Ok, the same thing that we used to, when used to pass the tube, you know, but now we can't pass the tube. What we're doing is giving it orally. Mix the stuff up put it in their dose syringes. Put it on the back of their tongue a hundred and eighty c.c. and (Unintelligible) even in the states where they have the black box, it won't test positive, pass the stomach tube and dump that whole big load in him show on the box. Dr. Plante, Herman Berger, and Detective Gabriel agreed to milkshake Yankeeroughneck before the horse's next race for the purpose of enhancing the horse's performance. On the morning of May 27, 1993, Dr. Plante advised Dr. Carinda that Dr. Carinda was to deliver an ionic boost to Yankeeroughneck's groom that afternoon. The ionic boost, which is also called a milkshake, consisted of approximately eight ounces of baking soda, and two to three ounces of confectioner's sugar mixed with water to the consistency of paste. Dr. Plante told Dr. Carinda that he had given instructions to the groom on May 24, 1993, on how to administer the milkshake. Yankeeroughneck was scheduled to and did race at the Pompano Track on May 27, 1993. Dr. Carinda testified that approximately two and one half hours before Yankeeroughneck was scheduled to race on May 27, 1993, he delivered a milkshake to Yankeeroughneck's groom for the purpose of having the groom administer the milkshake to Yankeeroughneck on the same day. The mixture was delivered in a ziplock bag. Detective Gabriel, Herman Berger, and Michael Metcalf, the groom, were present at the racetrack at the time Dr. Carinda delivered the milkshake. Dr. Carinda told them to administer the milkshake as close as possible to the time that horse was placed in confinement. Once a horse is placed in confinement prior to a race, nothing can be administered to the horse. When Dr. Carinda arrived at the track, Detective Gabriel, Herman Berger, and Michael Metcalf had a dose syringe ready for the milkshake. Dr. Carinda testified that he did not consider the mixture of baking soda, sugar, and water to be a drug because it was not administered intravenously. He also testified that the purpose of administering the milkshake was to alleviate the pain and fatigue associated with a horse "tying up." Tying up refers to the pain and injury caused by tearing muscles due to exertion. By relieving the pain that would be caused by tying up, the milkshake would enhance the horse's performance. After delivering the milkshake and prior to leaving the track on May 27, 1993, Dr. Carinda engaged in the following conversation with Detective Gabriel: Carinda: (Unintelligible) now boys. Gabriel: Okay. Carinda: The rest is up to you. Gabriel: I certainly appreciate it Mikey. Carinda: Now if you come home as fast as you can leave. Gabriel: You know the horse, you know the horse. About a minute after Dr. Carinda left, Michael Metcalf used a dosing syringe to force the mixture that Carinda had delivered down the throat of Yankeeroughneck. After Mr. Metcalf administered the milkshake to Yankeeroughneck, Detective Gabriel retrieved the ziplock bag and transferred it to Detective Piroth. The bag contained the residue of the milkshake. On June 10, 1993, Dr. Carinda delivered a milkshake, containing sodium bicarbonate, confectioner's sugar, and water to Yankeeroughneck's groom. After Dr. Carinda left, Charles Giamanco and Michael Metcalf used a dosing syringe to force the milkshake down Yankeeroughneck's throat. Detective Gabriel retrieved the ziplock bag with the residue of the milkshake and transferred it to Detective Reubottom. Approximately two and one-half hours after the milkshake was administered on June 10, 1993, Yankeeroughneck raced at the Pompano Track. Dr. Carinda admitted that during the 1993 season he had participated in milkshaking race horses at the Pompano Track on at least 150 occasions.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered, finding that Dr. Michael Carinda violated Section 550.235(2), Florida Statutes, as set forth in Counts II and VII of the Second Amended Administrative Complaint, suspending his occupational license for a period of two years, assessing an administrative fine of $2,000, and dismissing Counts I, III, IV, V, VI, VIII, IX, and X of the Second Amended Administrative Complaint. DONE AND ENTERED this 11th day of December, 1997, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 11th day of December, 1997. COPIES FURNISHED: Madeline McGuckin Assistant General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007 James G. Brown, Jr., Esquire Law Offices of Brown & Brown 2700 West Atlantic Boulevard Suite 215 Pompano Beach, Florida 33069 Deborah R. Miller, Director Division of Pari-Mutuel Wagering Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
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 November 29, 1978 a horse trained by the Respondent was entered and ran in the sixth (6th) 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
Findings Of Fact The Department is the state agency charged with the responsibility of regulating licensees in the pari-mutuel industry. Respondent, Albert P. Polito, holds a pari-mutuel wagering occupational license, license number 12037440-1081, and at all times material to this case was operating as a trainer at Pompano Park, a pari-mutuel wagering race grounds. In 1993, Respondent was employed by the Erenstoft family to train and race a standardbred horse named "Handy A." "Handy A" was purchased by Mrs. Erenstoft in 1992. Mrs. Erenstoft paid $4,500 for the horse. As is customary in the industry, "Handy A" was delivered to Respondent's care and custody. As the trainer Respondent was responsible for the stable fees, food, training, and care of the horse. In return, the owner paid Respondent a monthly trainer's fee. When "Handy A" sustained an injury in July, 1994, he was unable to continue racing. Respondent wanted to turn the horse out. Turning a horse out allows them recuperative time to determine whether the injury will heal sufficient to allow the horse to return to racing. In this case, the Erenstofts agreed that Respondent could turn out "Handy A." Respondent advised the Erenstofts that "Handy A" was turned out to a farm somewhere in central Florida. The Erenstofts paid all monies which were owed to Respondent for the care and training of "Handy A." The Erenstofts have not sold nor agreed to sell "Handy A." The Erenstofts have not seen "Handy A" since July, 1994. When Respondent did not return "Handy A" to Pompano Park after demands for same were made, the Erenstofts began inquiries to attempt to locate the horse. Since no attempt to register a new owner has occurred it is presumed the new owner does not race "Handy A" within the regulated pari-mutuel industry. One market available for such a horse is with the Amish. Typically buyers representing the Amish visit Pompano Park to acquire standardbred horses trained to pull carts. In this case, Respondent told Vic Papeo he had "Amished" the subject horse. If, in fact, "Handy A" was sold to the Amish it will be extremely difficult, if not impossible, to recover the horse. Respondent has not paid the Erenstofts for the sale of "Handy A." CONCLUSIONS OF LAW The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings. Section 550.105(6), Florida Statutes, provides, in pertinent part: The division may deny, revoke or suspend any occupational license if the applicant therefor or holder thereof accumulates unpaid obligations or defaults in obligations... Furthermore, Rule 61D-1.006(3)(a) states: The division may deny a license to or revoke, suspend or place conditions upon or restrictions on a license of any person, or rule off or declare ineligible any person who: 2. Has unpaid fines or financial obligations; In this case, there has been clear and convincing evidence presented that Respondent incurred a financial obligation to the Erenstofts and failed to return the horse, "Handy A." It is presumed Respondent disposed of the horse, by sale or otherwise, without the owner's permission. Respondent has failed to meet financial obligations and is, therefore, ineligible for licensure.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That the Division of Pari-Mutuel Wagering enter a final order revoking the pari-mutuel wagering occupational license of Respondent. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 24th day of December 1996. JOYOUS D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 24th day of December 1996. APPENDIX Rulings on the proposed findings of fact submitted by the Petitioner: 1. Paragraphs 1 through 14 are accepted. Rulings on the proposed findings of fact submitted by the Respondent: None submitted. COPIES FURNISHED: Royal H. Logan, Acting Director Division of Pari-Mutuel Wagering Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-1007 Lynda L. Goodgame General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Thomas W. Darby, Esquire Department of Business and Professional Regulation Division of Pari-Mutuel Wagering Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-1007 Albert Polito 5440 Northwest 55th Boulevard Apartment 11-207 Coconut Creek, Florida 33073
Conclusions The Department of Business & Professional Regulation, Division of Pari-Mutuel Wagermg (Division), hereby enters this Final Order for the above styled matter. On November 28, 2012, the Honorable Stuart M. Lerner, Administrative Law Judge (A.L.J.), issued his Recommended Order in this case, DOAH Case No. 12-3292. Thereby, A.L.J. Lerner relinquished jurisdiction to the Division and recommended “that it enter a final order dismissing GPTARP’s! Petition for Administrative Hearing, without prejudice ....” A.L.J. Lerner’s Recommended Order is attached to this Final Order and incorporated herein by reference. Accordingly, IT 18 HEREBY ORDERED that this case shall be and is hereby DIS- MISSED, without prejudice. ! GPTARP is Petitioner herein, Gulfstream Park Thoroughbred After Racing Program, Inc. Filed December 4, 2012 1:05 PM Division of Administrative Hearings DONE AND ORDERED this 3 day of December, 2012, in Tallahassee, Florida. N M. BIEGALSKI, CTOR Division of Pari-Mutuel Wagering Department of Business & Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1035
Appeal For This Case Unless expressly waived, any party substantially affected by this final order may seek judi- cial review by filing an original Notice of Appeal with the Clerk of the Department of Business and Professional Regulation, and a copy of the notice, accompanied by the filing fees prescribed by law, with the clerk of the appropriate District Court of Appeal within thirty (30) days of rendi- tion of this order, in accordance with Rule 9.110, Florida Rules of Appellate Procedure, and Sec- tion 120.68, Florida Statutes. CERTIFICATE OF SERVICE I hereby certify this day of December, 2012, that a true copy of the foregoing “Order” has been served by U.S. Mail upon the following, with email service as indicated below: J. STEPHEN MENTON, ESQ. MARC W. DUNBAR, ESQ. MICHAEL J. BARRY, ESQ. DANIEL R. RUSSELL, ESQ. Rutledge Ecenia, P.A. Pennington, Moore, Wilkinson, Bell & Dunbar, P.A. Post Office Box 551 Post Office Box 10095 Tallahassee, Florida 32302-0551 Tallahassee, Florida 32302-2095 JOHN M. LOCKWOOD, ESQ. WILBUR BREWTON, ESQ. John M. Lockwood, P.A KELLY BREWTON PLANTE, ESQ. 200 West College Avenue, Suite 307 Brewton Plante, P.A. Tallahassee, Florida 32301-7710 225 South Adams Street, Suite 250 Tallahassee, Florida 32301-1709 ANDREW T. LAVIN, ESQ. Navon & Lavin, P.A. 2699 Stirling Road, Suite B-100 Ft. Lauderdale, Florida 33312-6543 AGENCY CLERK’S OFFICE Department of Business & Professional Regulation Counsel Email Copies Furnished to: Marc Dunbar Dan Russell Wilbur Brewton Kelly Plante John Lockwood Steve Menton Mike Barry Andrew Lavin
The Issue Whether Respondent committed the offenses alleged in the Amended Administrative Complaint and the penalties, if any, that should be imposed.
Findings Of Fact Respondent is a veterinarian licensed in the State of Florida. On October 8, 1990, Respondent received pari-mutuel wagering occupational license number 0364610-1046 from the Petitioner. Respondent held this pari-mutuel wagering occupational license at all times pertinent to this proceeding. Petitioner is the State agency responsible for the regulation of the horse racing industry in the State of Florida. At all times pertinent to this proceeding, Respondent worked as a racetrack veterinarian at Pompano Harness Track (Pompano Track) in Pompano Beach, Florida. James Gabriel is a sixteen year veteran of the Fort Lauderdale, Florida, Police Department. During the latter part of 1992, Officer Gabriel began an undercover investigation at Pompano Track as part of his duties with the Metropolitan Organized Crime Intelligence Unit. Officer Gabriel posed as a convicted felon who was the owner of the horse Yankee Roughneck. Horse owner Herman Berger registered Yankee Roughneck in his (Berger's) name since as a convicted felon, Officer Gabriel's undercover persona would not be allowed to register as the true owner. Mr. Berger was a target of Officer Gabriel's undercover investigation and did not know that Officer Gabriel was in fact a police officer. Officer Gabriel and Mr. Berger were in contact with one another on almost a daily basis between November 1992 and May 1993. Mr. Berger owned the horse You've Got The Time. Officer Gabriel's undercover investigation lasted approximately one year and was electronically monitored so that conversations in which Officer Gabriel was a part were tape recorded without the knowledge of the other participants in the conversation. At all times pertinent to this proceeding, Yankee Roughneck and You've Got The Time were standard bred horses that raced at Pompano Track. On the morning of May 24, 1993, Officer Gabriel met with Mr. Berger and discussed having Respondent give Yankee Roughneck a substance to make him run faster. Mr. Berger referred to the substance to be given to Yankee Roughneck as being a "malt". A malt is also known as a "milkshake" and as an "ionic boost". Later that same day Officer Gabriel came into contact with Respondent when Respondent arrived at Pompano Track at the stable of Charlie Giamanco, the trainer of Yankee Roughneck. Respondent was at the stable to treat Yankee Roughneck for an injury that occurred when the rail of a jog cart broke and a splinter stabbed Yankee Roughneck in the shoulder. Officer Gabriel was in the presence of Mr. Berger and Mr. Giamanco when Respondent arrived at the stable. Respondent did not know Officer Gabriel, but he knew that Officer Gabriel was a colleague of Mr. Berger. Officer Gabriel engaged in a conversation with Respondent which was electronically monitored by equipment in good working order. The following conversation among Respondent (P.P.), Officer Gabriel (J.G.), Mr. Berger (H.B.), and Mr. Giamanco (C.G.) was taped. This conversation pertains to racing Yankee Roughneck and ways to enhance the horse's performance. P.P.: If the horse the ah, had he been milkshaked before did he race well when he was milkshaked? Not every horse races well when they get bagged. (Unintelligible.) H.B.: He came, he raced but not the way he supposed (sic) to. P.P.: I'll speak with Charlie tomorrow morning. Well the only thing to do is to try it one start. H.B.: Yes. P.P.: Not (sic) that expensive to do. (Unintelligible.) H.B.: Exactly. P.P.: If the horse improves. H.B.: Alright (sic). J.G.: How long does it take before we do something like that for (unintelligible). P.P.: Two and a half hours before the race. Thereafter, Respondent made the following statement: P.P.: OK, the same thing that we used to, when we used to pass the tube, you know, but now, we can't pass the tube. What we're doing is giving it orally. Mix the stuff up put it in their dose syringe. Put it on the back of their tongue a hundred and eighty c.c. and (unintelligible) even in the states where they have the black box, it won't test positive, pass the stomach tube and dump that whole big load in him shows on the box. Subsequently in the conversation, the following dialogue occurred: H.B.: And we going (sic) to do for Yankee Roughneck (unintelligible). J.G.: Well, what day do we want to do that? When we find out when he's, I think he's in Thursday. P.P.: Okay. H.B.: We'll find out today. P.P.: (Unintelligible) check with Charlie and the day he gets in. H.B.: Yeah. The milkshake referred to by Respondent and by the other participants in this conversation is a liquid concoction that includes a mixture of sodium bicarbonate. As described by Respondent, the mixture would thereafter be given the horse by dose syringe. This mixture is given to a racehorse in the hopes of enhancing the horse's performance during the race. In the amounts discussed by Respondent, sodium bicarbonate meets the definition of a "medicine" within the meaning of Section 550.235(2), and Section 550.2415(1)(a) and (8), Florida Statutes. The evidence established that sodium bicarbonate raises the ph level in the horse beyond the normal physiological range and can be expected to delay muscle fatigue in a horse by buffering the buildup of lactic acid in the muscle during periods of exercise. The horse can be expected to run faster because the onset of fatigue will be delayed. An improvement of one to two seconds can be expected in the horse's racing time, which equates to approximately five lengths in a harness race. Sodium bicarbonate is also administered to racehorses to prevent a condition formally known as exertional rhabdomyolisis and informally referred to as "tying up". The onetime administration of sodium bicarbonate shortly before race time under the facts of this case was to enhance the horse's performance and not to prevent tying up. If the prevention of tying up had been the goal, small amounts of sodium bicarbonate would had been added to the horse's food over an extended period of time. The Respondent's reference to the "black box" in the taped conversation is to a device employed by many race tracks to test whether a horse has been "milkshaked" or otherwise improperly medicated. Pompano Track did not use a blackbox. The Respondent's reference to "tubing" a horse is a prohibited practice whereby a stomach tube is passed through the horse's mouth and into the stomach. The "milkshake" is thereby pumped directly into the horse's stomach. The tubing of a race horses is a practice prohibited by rule adopted by Petitioner. The tubing rule was adopted by Petitioner in an effort to stop the practice of tubing horses by grooms or trainers who have inadequate training and to prevent the practice of milkshaking horses. Typically, more of the concoction would be administered by tubing than by using the dose syringe. The evidence established that the amount of sodium bicarbonate discussed by Respondent is sufficient to enhance the horse's performance. Administering the "milkshake" by syringe, as Respondent said he would do, would not violate Petitioner's rule against tubing a horse. Administering the "milkshake" by syringe, as Respondent said he would do, would constitute the administration of a medication within twenty-four hours of a race in violation of Section 550.2415(8), Florida Statutes. The Thursday referred to in the conversation is May 27, 1993, the day that Yankee Roughneck was next scheduled to race. On May 27, 1993, Dr. Michael Carinda, a veterinarian who was in practice with Respondent, brought a "milkshake" to Yankee Roughneck's stable. A groom thereafter administered the milkshake to Yankee Roughneck in the manner described by Respondent. Yankee Roughneck placed third in his race, but he ran slightly slower than he had in his previous race. The evidence did not establish that Respondent agreed to "milkshake" the horse You've Got The Time within twenty-four hours of a race.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order that adopts the findings of fact and conclusions of law contained herein. IT IS FURTHER RECOMMENDED that Petitioner's Final Order find Respondent not guilty of the offenses alleged in Counts One, Four, Five, and Six of the Amended Administrative Complaint. IT IS FURTHER RECOMMENDED that Petitioner's Final Order find Respondent guilty of the offenses alleged in Counts Two and Three, suspend Respondent's occupational license for a period of one year, and assess against Respondent an administrative fine in the amount of $2,000. DONE AND ENTERED this 12th day of December, 1994, 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 12th day of December 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-5993 The following rulings are made on the proposed findings of fact submitted by the Petitioner. The proposed findings of fact in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 13, 20, 21, 26, and 30 are adopted in material part by the Recommended Order. The proposed findings of fact in paragraph 11 are adopted in part by the Recommended Order and are rejected in part as being unnecessary to the conclusions reached. The proposed findings of fact in paragraphs 14, 15, 16, 17, 18, 19, 22, 23, 24, 25, 27, 28, 29, 31, 32, 33, 34, 35, 37, 38, 39, 41, 42, 43, 44, 45, and 46 are rejected as being subordinate to the findings made. The proposed findings of fact in paragraph 36 are rejected as being unnecessary to the conclusions reached. The proposed findings of fact in paragraph 40 are adopted in part by the Recommended Order, but are rejected in part as being argument that is subordinate to the findings made. The following rulings are made on the proposed findings of fact submitted by the Respondent. The proposed findings of fact in paragraphs 1, 2, 3, 4, 11, and 15 are adopted in material part by the Recommended Order. The proposed findings of fact in paragraphs 5 and 8 are rejected as being unnecessary to the conclusions reached. The composition of the concoction referred to as a "milkshake" was described in the Amended Administrative Complaint and was established at the formal hearing. The proposed findings of fact in paragraph 6 are rejected as being contrary to the findings made. The proposed findings of fact in paragraph 7 are subordinate to the findings made. The proposed findings of fact in paragraphs 8, 12, and 13 are rejected as being argument. The proposed findings of fact in paragraphs 9 and 10 are rejected as being unnecessary to the conclusions reached or as being contrary to the findings made. The proposed findings of fact in paragraphs 14 and 16 are rejected as being argument that is contrary to the conclusions reached or to the findings made. COPIES FURNISHED: Richard A. Grumberg, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32308 Karen C. Amlong, Esquire William Amlong, Esquire Amlong and Amlong 500 Northeast 4th Street, 2nd Floor Fort Lauderdale, Florida 33301 Dr. Paul R. Plante 1450 Southwest Third Street Pompano Beach, Florida 33069 William E. Tabor, Director Division of Pari-Mutuel Wagering 1940 North Monroe Street Tallahassee, Florida 32399-0792 Jack McRay, Acting General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact Petitioner is an agency of the State of Florida charged with the duty of regulating harness horse racing in the State of Florida. On December 7, 1979, the Chief of the Division's laboratory, Dr. Wayne Duer, reported four findings of impermissible drugs or medications in four horses that raced at a harness meeting that was then being conducted at Pompano Park. Division documentation indicated that the four horses had been trained by three trainers, one of whom was the Respondent. See Division of Pari-Mutuel Wagering v. Charles R. Federman, DOAH Case No. 80-817. As a matter of standard policy, the Director of the Division authorized a search to be conducted of the barn area and vehicles of the three trainers as soon as possible. The reason for a prompt search was to ensure that no further violations would take place as well as to secure any evidence of the illegal administration of the prohibited substances. Upon arrival at the track, Division personnel authorized to conduct the search had Respondent Federman paged to his barn. After a search of the barn revealed no evidence of Prohibited substances, Respondent was asked the location of his car so that it could also be searched. Respondent questioned the authority of Division personnel to search his vehicle, whereupon he was shown a copy of the Division's rules purporting to authorize such a search. Respondent then agreed to allow the search of-his car. Respondent unlocked the front of his car, and upon a search of the interior of the car the following items were found: six insulin syringes; a bottle of Didrex pills, which were shown by analysis to be benzphetamine, a central nervous system stimulant; a packet of zigzag cigarette papers; a hand-rolled cigarette, analyzed by the Broward County Sheriffs Department to contain cannibas or marijuana; one 12-cc syringe filled with clear substance with a needle attached to it; another 12-cc syringe; a 3-cc syringe with needle; a glass smoking apparatus; a plastic shaving kit; a 30-cc vial containing an unknown substance; and ten 2-cc vials of Narcan, analyzed to be naloxome, a narcotic antagonist which removes the effect of narcotics such as heroin and morphine. Respondent was than asked to unlock the trunk of his car. Respondent stated that he did not have the key to the trunk of his car, so he was driven by Division personnel to his motel room to obtain the key. Respondent was unable to find the key in his motel room. Division; personnel then informed Respondent of their intention to impound the car, pending a search of the trunk. Upon researching the interior of the car, Respondent then announced that he had found the key and proceeded to unlock the trunk. Inside the trunk were found three 100-milliliter vials marked "Solo-Delta Cortef", five 100-milliliter vials marked "Solu-Delta-Cortef"; two 3-milliliter vials marked "Solu-Delta Cortef"; two 4-milliliter vials marked "Levophed"; four bottles marked "Tevcodyne" containing 100 tablets each; one 250-cc bottle of sterile water; a box containing fifty 12-cc syringes; and a box containing fifty 3-cc syringes. Respondent did not have written permission from the stewards to possess any of the items taken from his car.
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
