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 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 This case has been bifurcated (as described more fully below). The issues in the present portion of this case are as follows: Whether Respondent, Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering (the "Division"), engaged in undue or unreasonable delay in processing Petitioner, Ft. Myers Real Estate Holdings, LLC's ("Ft. Myers"), application for a quarter horse racing permit. Whether the Division repeatedly denied Ft. Myers' application for a quarter horse racing permit. Whether the Division denied Ft. Myers' petitions for hearing for the purpose of ensuring application of the new law, effective July 1, 2010, that made quarter horse racing permit applications subject to the limitations contained in section 550.554, Florida Statutes (2010).1/
Findings Of Fact Ft. Myers is a Florida limited liability company established for the purpose of obtaining a permit to own and operate a quarter horse racing facility in the State of Florida. It is further the intent of Ft. Myers to operate as a pari-mutuel wagering facility in any fashion allowed by law. The Division is the state agency responsible for reviewing and approving applications for pari-mutuel wagering permits, including quarter horse racing facility permits. In January 2009, Ft. Myers filed an application (the "Application") seeking a permit to build and operate a quarter horse racing facility in Lee County, Florida. The Application was properly filed with the Division. On February, 13, 2009, the Division issued a deficiency letter setting forth several perceived problems with the Application. Ft. Myers submitted a response to the deficiency letter on February 18, 2009. In the response, Ft. Myers addressed each of the deficiencies. As far as can be determined, the Application was deemed complete by the Division sometime after February 18, 2009. However, Ft. Myers, thereafter, contacted the Division and asked that further action on the Application be delayed. The basis for that request was that there were some "hostile bills" against quarter horse racing filed with the Legislature, and there were some pending issues concerning a compact with the Seminole Tribe of Florida. Ft. Myers acknowledges that it requested delays in the review of the Application based upon business reasons. In conjunction with amendments relating to the Indian Gaming Compact, on May 8, 2009, the Legislature enacted Chapter 2009-170, Laws of Florida (also commonly referred to as SB 788), which authorized slot machine gaming for pari-mutuel permit holders located in Miami-Dade County. Chapter 2009-170 was filed with the Secretary of State and approved by the Governor on June 15, 2009, and states in pertinent part: Section 14. Section 550.334, Florida Statutes is amended to read: 550.334 Quarter horse racing; substitutions (2) All other provisions of this chapter, including s. 550.054, apply to, govern, and control such racing, and the same must be conducted in compliance therewith. * * * Section 19. Subsections (4) and (7) of section 551.102, Florida Statutes, are amended to read: 551.102 Definitions.—As used in this chapter, the term: (4) "Eligible facility" means any licensed pari-mutuel facility located in Miami-Dade County or Broward County . . .; any licensed pari-mutuel facility located within a county as defined in s. 125.011, provided such facility has conducted live racing for 2 consecutive calendar years immediately preceding its application for a slot machine license, pays the required license fee, and meets the other requirements of this chapter; . . . * * * Section 26. Sections 1 through 3 of this act and this section shall take effect upon becoming law. Sections 4 through 25 shall take effect only if the Governor and an authorized representative of the Seminole Tribe of Florida execute an Indian Gaming Compact pursuant to the Indian Gaming Regulatory Act of 1988 and requirements of this act, only if the compact is ratified by the Legislature, and only if the compact is approved or deemed approved, and not voided pursuant to the terms of this act, by the Department of the Interior, and such sections take effect on the date that the approved compact is published in the Federal Register. Section 14 of the legislation essentially applied a provision to quarter horse racing facilities that already applied to other pari-mutuel facilities, i.e., no new facility could be approved for a location within 100 miles of an existing pari-mutuel facility. The effective date of this legislation, as evidenced in section 26, was conditioned on the execution and approval of a gaming compact between the State of Florida and the Seminole Tribe of Florida. The compacts were subsequently executed by the Governor and the Seminole Tribe of Florida on August 28, 2009, and August 31, 2009, however, they were not ratified by the Legislature, and, thus, they were specifically rendered void as was the remainder of Chapter 2009-170.2/ In consideration of SB 788 and certain business negotiations with another permit holder in Lee County, Ft. Myers amended the Application by changing the location of the project to Florida City, Dade County, Florida. In an amended permit application dated July 27, 2009, and filed with the Division on August 12, 2009, Ft. Myers made the following changes to its initial proposal: Changes were made to the ownership interest of the project; A revised business plan, revised financial projections for year one of operations, and a revised internal organizational chart were included; The proposed site plan was amended to reflect the move to Florida City; and A new construction time line was submitted. Meanwhile, several other entities submitted applications seeking to construct and operate quarter horse racing facilities in different venues around the state. Quarter horse permits were then issued to ELH Jefferson, LLC ("ELH Jefferson"); Gretna Racing, LLC; Debary Real Estate Holdings, LLC ("Debary"); and South Marion Real Estate Holdings, LLC, between November 2008 and May 2009. Those approvals were given, in part, based on written assurances from land use attorneys that zoning and other land use approvals (necessary elements for permit approval) could be obtained after permit issuance. After the Division began issuing quarter horse racing permits, however, the Division started to realize that it may not have been requiring a sufficient showing from applicants to meet the statutory criteria for issuance of a permit under section 550.334, Florida Statutes (2008). Notably, although nine quarter horse permits were issued from September 2008 until February 2010, no quarter horse racing permit holder, without an existing facility at the time of permit issuance, had actually utilized a permit to conduct quarter horse racing. Further, both ELH Jefferson and Debary failed to obtain necessary land use approvals after permit issuance, notwithstanding land use attorney opinions that they were obtainable. The Division then began to consider around August 2009, whether it needed more evidence that the land was available for use than opinions from land use attorneys. The Division's re-appraisal began in the course of reviewing the Miami-Dade Airport's application for a quarter horse permit, which asserted that the entire airport property was available for use as a quarter horse facility. The issues associated with the Miami-Dade Airport application, along with the Division's experience that despite assurances, some permit applicants had been unable to obtain land use approvals, caused the Division to determine that it needed more evidence that the land was, in fact, available for use to ensure the statutory requirements for permit issuance were met. At about the same time the Division was re-appraising its method of reviewing permit applications, Ft. Myers decided to change the location of its proposed quarter horse facility from Lee County to Dade County, Florida. In response to the change, the Division sent Ft. Myers a deficiency letter concerning the Dade County site dated September 11, 2009. That letter set out the following pertinent deficiency items: Deficiency #1 That the location(s) where the permit will be used be "available for use." That because previous quarter horse applications have provided opinion letters from land use experts, and those sites have later proven not be to usable for the quarter horse facility, more specific information was required, i.e., The qualifications of the applicant's zoning attorney; A written statement of the attorney's grounds forming his opinion; and A copy of any application for rezoning filed with the City of Florida City, including an update from the City on the status of the application. Deficiency #2 That the location(s) where the permit will be used be "available for use." That the Letter of Intent provided by Ft. Myers is insufficient and that documentation reflecting its control over the property is required, i.e., a purchase agreement. The Division also asks for information regarding Ft. Myers' relationship with the registered owner of the site in question. Deficiency #4 That reasonable supporting evidence be provided that "substantial construction will be started within 1 year" after issuance of the permit. On November 11, 2009, Ft. Myers responded to the Dade County deficiency letter. In its response, Ft. Myers provided the Division the following information: Information about its land use attorney, Jerry B. Proctor, from the law firm Bilzin Sumberg. A letter dated September 18, 2009, from Henry Iier, City Planner for the City of Dade City. The letter indicates that the City has zoning jurisdiction over the subject property and that it allows applications for zoning changes. Tier also states that the timetable for rezoning appears reasonable. An Agreement for Purchase and Sale between Ft. Myers and an entity called Florida City 70 Acres, LLC. The agreement includes a contingency provision requiring implementation of certain provision of SB 788 passed by the 2009 Legislature. Fulfillment of those provisions was a condition precedent to Ft. Myers' commitment to purchase the property. The Division considered Ft. Myers' response to mean that it had made a decision not to provide information about its zoning request status. Had Ft. Myers submitted that information or requested additional time to gather the information, the Application would not have been denied on that basis. The Division found the contingency in the Purchase and Sale Agreement to be a significant impediment to commencement of construction within one year. In fact, the agreement was also contingent on the approval of provisions of SB 788 that may not ever be approved. As such, the agreement failed to meet the requirements for approval. Sometime during the month of December 2009, personnel from the Division contacted another quarter horse permit applicant, North Florida Racing, concerning its pending application. The Division employee advised North Florida Racing that there had been a change in "policy" at the Division concerning one aspect of the application review. Specifically, North Florida Racing was advised that their selected site would have to be proven to be "land available for use" as a quarter horse facility. They were told that the old standard of having a local zoning lawyer's opinion letter would not suffice. Rather, the applicant must show that an application for rezoning had actually been filed. It is not clear from the evidence whether North Florida Racing contacted the Division or whether the Division initiated that contact. Other than the statements in the deficiency letter, Ft. Myers was not directly contacted by anyone from the Division concerning this change in policy. On January 12, 2010, the Division issued a letter denying Ft. Myers' application for a quarter horse permit in Miami-Dade County, Florida. The denial letter provided two bases for the Division's decision: One, that the Application failed to demonstrate that the land is available for use (under its new policy); and two, that the Application failed to provide reasonable supporting evidence that substantial construction of the facility would be commenced within one year of issuance of the permit. The denial letter contained a statement concerning the process for requesting an administrative hearing on the matter. It is the position of Ft. Myers that the Division imposed unauthorized requirements on Ft. Myers' application so that it could use the new law in effect, that the Division imposed non-rule policy on Ft. Myers to delay processing of the application, and that the Division unreasonably and improperly delayed Ft. Myers' application to take advantage of the change in the law. The following Findings of Fact (22 through 45) were proffered by Ft. Myers in the furtherance of their position. Hartman and Tyner, d/b/a Mardi Gras Casino ("Hartman and Tyner"), Calder Casino and Race Course ("Calder"), and the Flagler Magic City Casino ("Flagler") are part of a coalition of South Florida pari-mutuel permitholders (collectively referred to as the "South Florida permitholders") that opposed the expansion of quarter horse racing into Miami-Dade County. Jim Greer, then chairman of the Republican Party of Florida, was a contract lobbyist for Hartman and Tyner. In May of 2008, Greer entered into a two-year contract with Hartman and Tyner that paid him $7,500 per month as a lobbyist. Charles "Chuck" Drago was the secretary of the Department of Business and Professional Regulation (the "Department"). Drago was a close friend of Greer. Drago had been the chief of police of Oveido where Mr. Greer had lived and served on the City Commission. Greer and Drago had been fundraisers for Governor Crist. Scott Ross was hired by the Department as a deputy director in April 2009. Ross was hired with assistance from Delmar Johnson, Ross' college friend, who held the position of executive director of the Republican Party of Florida. Johnson worked for Greer. Ross' responsibility included oversight of the Division. David "Dave" Roberts was the director of the Division for approximately eight years. Roberts was division director when a number of quarter horse permit applications were filed with the Division after the 2007 changes in the card room law, which allowed quarter horse racing facilities to have card games. Roberts caused the Division to develop guidelines to govern the review of the quarter horse applications. After Roberts was forced to resign, the Division modified the guidelines to require applicants to show that zoning was in place for racing before the permit was issued. Milton "Milt" Champion was named director of the Division, effective January 4, 2010. He signed the denial of Ft. Myers' quarter horse permits on January 12, 2010, after he had been on the job for eight days. Joseph Helton is an attorney employed by the Division and has served as chief legal counsel to the Division since 2002. Helton has worked as an attorney for the Division for a combined 13 to 14 years. Helton was identified by the Division as its agency representative in this proceeding. Earnest James "Jim" Barnes is employed by the Division as an Investigative Specialist II. Barnes' duties with the Division include the evaluation of applications for quarter horse permits. Barnes was involved in the processing of all quarter horse permit applications. While he was director of the Division, Roberts made all of the decisions on whether to grant or deny a pari-mutuel permit. Neither the secretary, nor the deputy secretary made any decisions on quarter horse applications during Roberts' tenure as director of the Division. Roberts testified that the Division developed guidelines in 2007 to aid in the review of all quarter horse applications after the first of several new applications for quarter horse permits were filed. Roberts explained that the Division had no rules implementing the statutory criteria in 2007, because there had not been any quarter horse applications filed with the Division for a long time. The guidelines for review of quarter horse applications developed under Roberts did not require the applicant to demonstrate that the property was zoned for a racetrack before the permit was issued. The Division interpreted the statutory "location is available for use" criterion to mean that racetrack zoning was "possible to obtain." Roberts noted that another pari-mutuel statute, section 550.055(2), specifically required the applicant for permit relocation to demonstrate that the location is zoned for racing before the Division issued a permit. In contrast, section 550.334 does not specifically require the applicant to demonstrate that racetrack zoning is in place. During Roberts' directorship, the Division would accept a letter from a land use attorney familiar with zoning in the area where the racetrack would be located describing the process by which proper zoning could be obtained as adequate evidence that zoning was obtainable. Consistent with this guideline, deficiency letters issued by the Division under Roberts requested applicants to provide an opinion from an attorney and from a local government official stating that proper zoning for the proposed location was "obtainable." That standard was specifically altered in the September 11, 2009, deficiency letter for Ft. Myers' Dade County proposal. The guidelines for review of quarter horse applications developed under Roberts did not require the applicant to own the land at the time the permit was issued. Rather, the applicant was required to give reasonable assurances that the property was under the control of the applicant by written agreement. The applicant typically satisfied this guideline by submitting a contract for purchase or a lease with the application. Some contracts might include a contingency or condition precedent. For example, the real estate contract in the Gretna Racing, LLC, application listed a number of contingencies that must be met. Roberts received numerous complaints from existing pari-mutuel permitholders (including, in particular, representatives of Hartman and Tyner) about the manner in which the Division was granting quarter horse permits. Ross also made it known to Roberts that he was not in favor of granting quarter horse permits. Roberts, however, believed that he was required to do what the letter of the statute dictated. According to Hartman and Tyner's attorney, John Lockwood, the "special interests" wanted Roberts terminated, because they were concerned with the quarter horse application review process. Lockwood testified that he heard complaints that Roberts gave out quarter horse permits "like candy." Lockwood made his client's concerns about Roberts' interpretation of the quarter horse statute known to Ross. Later, Jim Greer, then a contract lobbyist for Hartman and Tyner, called Ross and asked him to fire Mr. Roberts. Ross met with Roberts and gave him the option of termination or resignation on July 16, 2009, within one week after Mr. Greer asked him to terminate Roberts. Roberts was not given a reason for his termination. Joe Dillmore became the interim director of the Division after Roberts was forced to resign. However, according to Dillmore, Ross was, in fact, the person in charge of all quarter horse permit applications after Roberts left. Ross told Dillmore that he wanted to be informed on decisions at every level of the quarter horse application process. Ross made it known to Dillmore that he believed the 100-mile restriction placed on other pari-mutuel permitholders should also be applied to quarter horse permit applications, even though the quarter horse statute did not impose a location restriction at that time. Ross opposed quarter horse racing because of the Governor's opposition to gambling in general. According to Barnes, Ross wanted to be kept apprised of all action on pending quarter horse permits, including deficiency letters, and any recommendation for approval or denial. Previously, Barnes had never been required to report his daily activities to a deputy secretary. Barnes was assigned to process the Application in October 2009, after the location changed from Lee County to Miami-Dade County. Barnes prepared the deficiency letter issued to Ft. Myers on September 11, 2009. On August 11, 2009, approximately three weeks after Roberts was forced to resign, there was a meeting held at the Calder Race Track in Miami between existing pari-mutuel permitholders and key agency personnel. The attendees of this meeting included representatives of Hartman and Tyner, Calder, and Flagler, the three loudest voices in opposition to the expansion of quarter horse gaming into Miami-Dade County. The agency was represented at the Calder meeting by Secretary Drago, Deputy Secretary Ross, and Mr. Helton. One topic of the Calder meeting was the competitive impact of new quarter horse permits on existing permitholders. In particular, the South Florida permitholders made it very clear at this meeting that they opposed the issuance of any quarter horse permits in Miami-Dade County. The existing pari-mutuel permitholders at the Calder meeting told the Division representatives that the Division should require quarter horse applicants to demonstrate that the proposed location for the permit was zoned for a racetrack before the permit was issued. This interpretation had been advanced in legal challenges filed by existing permitholders (including Hartman and Tyner) before the Calder meeting. However, these legal challenges failed to achieve the desired result before the Calder meeting. On August 12, 2009, the day after the Calder meeting, Ft. Myers amended the Application ("Amended Application") for a quarter horse permit to change the location to Miami-Dade County. Lockwood found out about the Amended Application within days and called Barnes to express his client's extreme displeasure with this change in location. Barnes sent an email to Helton on August 19, 2009, relaying the call from Lockwood stating "don't know what that means in the long run." There was a meeting held in Tallahassee within days of this email between attorneys for the South Florida permitholders (including Lockwood) and attorneys for the Division (including Helton), so the permitholders could express their concerns with the quarter horse review process with Division counsel in person. The Application Review It was the Division's normal practice to provide applicants with deficiency letters so that applicants could be fully aware of any shortcomings and be given an opportunity to correct the deficiencies. It was not uncommon for the Division to issue two or more deficiency letters to an applicant. In the present case, Ft. Myers received a deficiency letter relating to its Lee County site, then received another one when the site was changed to Miami-Dade County. After Ft. Myers responded to the deficiency letter for Miami-Dade County, it reasonably relied upon the issuance of a further deficiency letter if there were remaining deficiencies. Although no additional letter was required, Ft. Myers believed one would be issued if there were further deficiencies. The Division did not issue a second deficiency letter for the Miami-Dade County site. The Division's rationale was that the first letter was clear and unambiguous, and if Ft. Myers did not respond appropriately, then the deficiencies must not be correctable. No one from the Division contacted Ft. Myers' representatives to discuss the continuing deficiencies. Two other quarter horse permit applications were pending at the same time the Application was under review at the agency: Hamilton Downs II and North Florida Racing. Hamilton Downs received its permit on February 4, 2010; North Florida Racing received its permit on March 26, 2010. Counsel for North Florida Racing remembers being told by Mr. Helton at the Division about changes to the Division's interpretation about the need for zoning approval. Counsel sent an email which says in part: "The powers that be seem to be shifting their interpretation of the statutes and rules to require that zoning for the track must be in place before a QH permit can be issued." Thereafter, North Florida Racing changed locations to a location zoned for quarter horse racing, and its permit was ultimately issued. It is unclear from the record whether Helton actually made the quoted statement, and, if so, in what context it was made. Helton could not remember the statement, but does not deny that it could have been made. As to the Hamilton Downs II location, neither of the two deficiency letters issued in that filing stated that the property had to be zoned for quarter horse racing. On November 4, 2009, Hamilton Downs provided the Division with a letter from the Town Council of Jennings stating it would support a zoning change at the proposed site to allow for quarter horse racing and that the zoning could be accomplished within six months. Thereafter, on December 14, 2009, Hamilton Downs submitted a letter from Hamilton County, Florida, stating the proposed site is, in fact, presently zoned for quarter horse racing. There is no credible evidence as to what precipitated Hamilton Downs' sending the Division that letter. The Administrative Hearing Petitions After receiving the denial letter from the Division, Ft. Myers prepared a Petition for Formal Administrative Hearing which it filed on January 29, 2010. On February 16, 2010, the Division rejected the Petition on the basis that it failed to identify disputed issues of material fact. Ft. Myers was given leave to amend its Petition within 21 days, i.e., on or before March 8, 2010. Ft. Myers filed its Amended Petition for Formal Administrative Hearing on March 8, 2010. The amended Petition was also rejected by the Division, this time on the basis that Ft. Myers did not have standing. The rational for that decision was that inasmuch as the SB 788 provisions could not come into effect and those provisions were a condition precedent to Ft. Myers' purchase agreement for property, Ft. Myers could not move forward on their Application and, thus, did not have standing in an administrative challenge. The rejection of Ft. Myers' Amended Petition was appealed to the First District Court of Appeal. In an opinion dated February 7, 2011, that court summarily reversed the Division's rejection of the Amended Petition. The Court remanded the case to the Division with directions to refer the case to the Division of Administrative Hearings. During the pendency of the appeal to the First District Court of Appeal, Chapter 2010-29 was passed and became law, effective July 1, 2010. The new law contained the 100-mile restriction mentioned above. There is not any location in Florida that would qualify for a new pari-mutuel facility under that limitation. If the original Petition filed on January 29, 2010, had been accepted by the Division, it is possible a final order could have been entered sometime between June 17 and July 26, 2010, had the case proceeded at a normal pace. Thus, it is possible the final order could have been entered prior to the new 100-mile limitation taking effect on July 1, 2010.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by Respondent, Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering, declaring that the 2010 version of section 550.334, applies to the Application filed by Petitioner, Ft. Myers Real Estate Holdings, LLC, for a quarter horse racing permit. IT IS THE UNDERSTANDING OF THE UNDERSIGNED AND ALL PARTIES THAT THIS RECOMMENDED ORDER WILL UNDERGO EXPEDITED AGENCY REVIEW SO THAT A FINAL ORDER AS TO THIS PORTION OF THE BIFURCATED PROCEEDING WILL BE RESOLVED AS QUICKLY AS PRACTICABLE. DONE AND ENTERED this 22nd day of August, 2011, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of August, 2011.
The Issue Whether Petitioner, a licensed greyhound trainer, committed the offenses alleged in the Amended Administrative Complaint and, if so, the penalties that should be imposed.
Findings Of Fact Petitioner issued Respondent greyhound trainer's license number 156254-1021 on January 10, 2003. Respondent was the trainer of record for the following greyhounds that raced at Hollywood Greyhound Track at the times pertinent to this proceeding: "WP's Dylan," "LM's Ice Age," "Doinwhat Blair," "Okie Leona," "Tom's Rusty," "Hi Accord," "LM's Angel Eyes," and "Miss Challenger." Hollywood Greyhound Track is a facility authorized to conduct pari-mutuel wagering in Florida pursuant to a permit issued by Petitioner. "WP's Dylan" raced in the fourth race at Hollywood Greyhound Track on the afternoon of January 21, 2003. "WP's Dylan" finished fourth in that race. Following the race, urine sample number 908316 was collected from "WP's Dylan" and was processed at the Racing Laboratory. "LM's Ice Age" raced in the first race at Hollywood Greyhound Track on the evening of January 23, 2003. "LM's Ice Age" finished second in that race. Following the race, urine sample number 907673 was collected from "LM's Ice Age" and was processed at the Racing Laboratory. "Doinwhat Blair" raced in the third race at Hollywood Greyhound Track on the evening of January 23, 2003. "Doinwhat Blair" finished first in that race. Following the race, urine sample number 908327 was collected from "Doinwhat Blair" and was processed at the Racing Laboratory. "Okie Leona" raced in the ninth race at Hollywood Greyhound Track on the evening of January 23, 2003. "Okie Leona" finished first in that race. Following the race, urine sample number 908358 was collected from "Okie Leona" and was processed at the Racing Laboratory. "Tom's Rusty" raced in the fifth race at Hollywood Greyhound Track on the evening of January 25, 2003. "Tom's Rusty" finished first in that race. Following the race, urine sample number 908104 was collected from "Tom's Rusty" and was processed at the Racing Laboratory. "Hi Accord" raced at Hollywood Greyhound Track on January 25, 2003. Following the race, urine sample number 907704 was collected from "Hi Accord" and was processed at the Racing Laboratory. "LM's Angel Eyes" raced at Hollywood Greyhound Track on January 25, 2003. Following the race, urine sample number 907694 was collected from "LM's Angel Eyes" and was processed at the Racing Laboratory. "Miss Challenger" raced at Hollywood Greyhound Track on January 25, 2003. Following the race, urine sample number 907698 was collected from "WP's Dylan" and was processed at the Racing Laboratory. Petitioner proved that each urine sample involved in this proceeding was collected, maintained, and analyzed pursuant to established, routine procedures. Petitioner established by clear and convincing evidence that all eight urine samples involved in this proceeding tested positive for metabolites of cocaine (benzoylecgonine and/or ecgonine methyl ester). Cocaine is a topical anesthetic, and a Class 1 drug under the Uniform Classification Guidelines for Foreign Substances, as promulgated by the Association of Racing Commissioners, Inc. Cocaine is prohibited in racing animals in Florida. The presence of the metabolites of cocaine in the urine of the eight animals at issue in this proceeding established that the dogs had been administered cocaine prior to the respective races. Respondent testified that he did not administer cocaine to any of the animals involved in this proceeding. Respondent's denial was uncorroborated.
Recommendation Based on the foregoing findings of fact and conclusions of Law, it is RECOMMENDED that Petitioner enter a final order revoking Respondent's license and imposing an administrative fine against Respondent in the aggregate amount of $8,000. DONE AND ENTERED this 29th day of May, 2003, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of May, 2003. COPIES FURNISHED: Joseph M. Helton, Jr., Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-2202 Kenneth C. Purdy 15855 Miami Lakeway, North E 248 Hialeah, Florida 33014 David J. Roberts, Director Division of Pari-Mutuel Wagering Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202
The Issue Whether Respondent is responsible for three violations of Section 550.2415(1)(a), Florida Statutes, as alleged in the Administrative Complaint, and if so, what penalty should be imposed.
Findings Of Fact Petitioner is the State of Florida, Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering which is created by Section 20.165(2)(f), Florida Statutes. The Division regulates pari-mutuel wagering in the State of Florida. Respondent, Donald S. Abbey, was the holder of a pari-mutuel occupational license, License No. 2013666-1081, that was issued by the Division during the month of May 2001. Hialeah Park is a facility operated by a permit holder authorized to conduct thoroughbred racing and pari-mutuel wagering in the State of Florida. Hialeah Park was so authorized in May 2001. On May 16, 2001, Respondent was the trainer of record and owner of a thoroughbred race horse named “Savahanna.” The horse Savahanna finished second in the first race at Hialeah Park on May 16, 2001. Immediately after the race a urine sample was collected from Savahanna. The urine sample was assigned sample No. 748428 and was shipped to the University of Florida Racing Laboratory. The University of Florida Racing Laboratory tested urine sample No. 748428 and found it to contain Terbutaline. On May 16, 2001, Respondent was the trainer of record and owner of a thoroughbred race horse named "Hada Clue." The horse Hada Clue finished second in the third race at Hialeah Park on May 16, 2001. Immediately after the race, a urine sample was collected from Hada Clue. The urine sample was assigned sample No. 748440 and was shipped to the University of Florida Racing Laboratory. The University of Florida Racing Laboratory tested urine sample No. 748440 and found it to contain Terbutaline. On May 18, 2001, Respondent was the trainer of record and owner of a thoroughbred race horse named "Sounds Like Scott." The horse Sounds Like Scott finished second in the fifth race at Hialeah Park on May 16, 2001. Immediately after the race a urine sample was collected from Sounds Like Scott. The urine sample was assigned sample No. 748536 and was shipped to the University of Florida Racing Laboratory. The University of Florida Racing Laboratory tested urine sample No. 748536 and found it to contain Terbutaline. Terbutaline is a bronchodilator and a Class 3 drug according to the Association of Racing Commissioners International classification system. In his Election of Rights, Respondent indicated that he was not the trainer of record. Specifically, he indicated that he had hired a person named Dimitrius Monahas as the trainer with the knowledge of the stewards of Hialeah Park. State Steward Walter Blum testified at the hearing that Respondent was, in fact, the trainer of record for the horses Savahanna, Hada Clue, and Sounds Like Scott. At Hialeah, the trainer of record is determined at the time stall spaces are assigned at the beginning of a meet. Respondent’s name appears in the official programs as both the trainer and the owner of the horses at issue. There is a procedure at Hialeah to notify the stewards of a change in trainer. However, Respondent did not notify the stewards of any change. Dimitrius Monahas signed sample tags for sample Nos. 748440 and 748536 as the owner’s witness. The sample tags list Respondent as both the trainer and owner of the horses.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Division of Pari-Mutuel Wagering enter a final order in this matter suspending Respondent’s occupational license for a period of ten (10) days and imposing a fine of $850.00. It is further recommended that the Division of Pari-Mutuel Wagering order that any purse received as a result of the second-place finishes of two of the races in question be returned. DONE AND ENTERED this 16th day of October, 2002, in Tallahassee, Leon County, Florida. DON W. DAVIS 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 16th day of October, 2002. COPIES FURNISHED: Donald S. Abbey Post Office Box 1199 Pilot Point, Texas 76258-1199 Joseph M. Helton, Jr., Esquire Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-2202 David J. Roberts, Director Division of Pari-Mutuel Wagering Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202
The Issue The issue in this case is whether Respondent, as the trainer of record for a greyhound, Tony's Maradona, that finished first place in the thirteenth race on November 6, 2001, is legally responsible for the prohibited substance found in the greyhound's urine sample taken immediately after the race, and if so, what penalty should be imposed.
Findings Of Fact At all times relevant and material to this proceeding, Petitioner, Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering (Division), created by Subsection 20.165(2)(f), Florida Statutes, is the agency responsible for regulation of the pari-mutuel wagering industry pursuant to Section 550.0251, Florida Statutes. At all times relevant and material to this proceeding, Respondent, Sardar Ahmed, was the holder of a pari-mutuel license issued by the Division. The Kennel Club is a permit holder authorized to conduct greyhound racing and pari-mutuel wagering in the State of Florida. On November 6, 2001, Respondent was the trainer of record for a greyhound, Tony's Maradona, having registered with the Kennel Club Racing Secretary and having been listed in the November 6, 2001, racing program. On November 6, 2001, greyhound Tony's Maradona finished as first (place) winner in the thirteenth race of the evening at the Kennel Club. Immediately after each race the greyhounds who finish in the win, place and show positions are taken to the "cooling off" area where urine samples are taken by the Kennel Club's veterinarian assistant and urine sample collector. On November 6, 2001, Brandy Glaspey, veterinarian assistant, collected the urine sample of greyhound, Tony's Maradona, and assigned, for identification purposes, number 738612 to Tony's Maradona's urine sample. Urine sample number 738612 was shipped to the University of Florida Racing Laboratory, Gainesville, Florida, where under the supervision of Dr. Ian R. Tebbett, Ph.D., professor and director of the racing laboratory at the University of Florida, and qualified as an expert in forensic toxicology, it tested positive for illegal substance, cocaine. Respondent testified that he did not administer the drug cocaine to the greyhound, Tony's Maradona; he had never been cited for any prior drug violation while holding a Florida occupational license; and he was not the trainer of Tony's Maradona, but was the owner of the greyhound. While this testimony was not rebutted or challenged by Petitioner and it is considered by the undersigned as true, its evidentiary value regarding the allegations in the complaint is nil. Respondent's defense to the Administrative Complaint (Election of Rights) alleging a possible breach of the "chain of custody" (from the end of the race, to bringing the dogs to the ginny pit, for sample collection, for sample labeling, sample examination and sample results) due to a lack of security was not supported by material evidence of record.
The Issue The Petitioner has accused the Respondent, Frank Rudolph Solimena, with a violation of Rule 7E-1.06(11)(a) Florida Administrative Code, which reads: "The running of a horse in a race with any narcotic, stimulant, depressant or local anesthetic is prohibited. If the stewards shall find that any narcotic, stimulant, depressant or local anesthetic has been administered or attempted to be administered, internally or externally, to a horse before a race, such stewards shall impose such punishment and take such other action as they may deem proper under any of the rules, including reference to the Division, against every person found by them to have admini- stered, or to have attempted to administer, or to have caused to be administered, or to have caused an attempt to administer, or to have conspired with another person to administer, such narcotic, stimulant, depressant or local anesthetic. If the Division laboratory shall find a positive identification of such medication, such finding shall constitute prima facie evidence that such horse raced with the medication in its system." Under the accusation, the Respondent is made responsible pursuant to the provisions of Rule 7E-1.18(3), Florida Administrative Code, referred to herein as the absolute insurer's rule, which provides that: "The trainer shall be responsible for, and be the insurer of the condition of the horses he enters. Trainers are presumed to know the rules of the Division." Specifically, Respondent Solimena is accused under facts that allege that during the period from October 6 through October 30, 1978 horses trained by the Respondent were entered and ran in five separate races at Calder race course. Subsequent to each race a urine specimen was taken from each horse and that each specimen was analyzed by the Petitioner's laboratory. It is further alleged that the Division of Pari-Mutuel Wagering laboratory reported the results of the tests and that each report showed that each urine sample contained Despropionyl Fentanyl, which is classified as a derivative of Fentanyl, a narcotic compound.
Findings Of Fact This cause comes on for consideration based upon a Notice to Show Cause (Administrative Complaint) filed by the Petitioner, State of Florida, Department of Business Regulation, Division of Pari-Mutuel Wagering, against Frank Rudolph Solimena. At all times pertinent to the Notice to Show Cause, Frank Rudolph Solimena was the holder of license Nos. K-00257 and K-00863, issued by the Petitioner to the Respondent, Frank Rudolph Solimena, enabling Solimena to operate as horse trainer and horse owner, respectively, at the several race tracks located in the State of Florida. The Petitioner, State of Florida, Department of Business Regulation, Division of Pari-Mutuel Wagering, is an agency of the State of Florida charged with the duty of the regulation of, among other things, the matters pertaining to thoroughbred horse racing in the State of Florida. The authority for such regulation is found in Chapter 550, Florida Statutes, and those rules promulgated to enforce the provisions of that chapter. Within that body of rules, are Rules 7E-1.06(11)(a) and 7E-1.18(3), Florida Administrative code, alluded to in the issues statement of this Recommended Order. Those rules as set out in the issues statement shall serve as a basis for determining the facts and reaching the legal conclusions necessary to formulate a decision in this matter and official recognition is taken of the aforementioned rules. The facts in this case show that the Respondent, Frank Rudolph Solimena, was acting as a horse trainer on October 6, 1978, at the Calder Race Course in Broward County, Florida. On that date, Myth Master, a horse trained by the Respondent, ran in the second race and finished in second position. Following the race, and on the same date, a urine specimen was taken from the horse, Myth Master. That urine specimen was subsequently analyzed through a series of tests and the test directed to the urine sample revealed a positive identification of a substance known as Despropionyl Fentanyl, which is classified as a derivative of Fentanyl, a narcotic. The process which occurred in Myth Master after he received the Fentanyl, was that the Fentanyl was metabolized in the horse's system to become Despropionyl Fentanyl, and that latter substance acted as a central nervous system stimulant in the horse during the course of the race. The narcotic Fentanyl, carries the trade name, Sublimaze. The facts in this case show that the Respondent, Frank Rudolph Solimena, was acting as a horse trainer on October 13, 1978, at the Calder Race Course in Broward County, Florida. On that date, Turbine Powered, a horse trained by the Respondent, ran in the fourth race and finished in second place. Following the race, and on the same date, a urine specimen was taken from the horse, Turbine Powered. That urine specimen was subsequently analyzed through a series of tests and the test directed to the urine sample revealed a positive identification of a substance known as Despropionyl Fentanyl, which is classified as a derivative of Fentanyl, a narcotic. The process which occurred in Turbine Powered after he received the Fentanyl, was that the Fentanyl was metabolized in the horse's system to become Despropionyl Fentanyl, and that latter substance acted as a central nervous system stimulant in the horse during the course of the race. The narcotic Fentanyl, carries the trade name, Sublimaze. The facts in this case show that the Respondent, Frank Rudolph Solimena, was acting as a horse trainer on October 26, 1978, at the Calder Race Course in Broward County, Florida. On that date, Myth Master, a horse trained by the Respondent, ran in the tenth race and finished in second place. Following the race, and on the same date, a urine specimen was taken from the horse, Myth Master. That urine specimen was subsequently analyzed through a series of tests and the test directed to the urine sample revealed a positive identification of a substance known as Despropionyl Fentanyl, which is classified as a derivative of Fentanyl, a narcotic. The process which occurred in Myth Master after he received the Fentanyl, was that that Fentanyl was metabolized in the horse's system to become Despropionyl Fentanyl, and that latter substances acted as a central nervous system stimulant in the horse during the course of the race. The narcotic, Fentanyl, carries the trade name, Sublimaze. The facts in this case show that the Respondent, Frank Rudolph Solimena, was acting as a horse trainer on October 28, 1978, at the Calder Race Course in Broward County, Florida. On that date, Ladrillazo, a horse trained by the Respondent, ran in the sixth race and finished in first place. Following the race, and on the same date, a urine specimen was taken from the horse, Ladrillazo. That urine specimen was subsequently analyzed through a series of tests and the test directed to the urine sample revealed a positive identification of a substance known as Despropionyl Fentanyl, which is classified as a derivative of Fentanyl, a narcotic. The process which occurred in Ladrillazo after he received the Fentanyl, was that that Fentanyl was metabolized in the horse's system to become Despropionyl Fentanyl, and that latter substances acted as a central nervous system stimulant in the horse during the course of the race. The narcotic, Fentanyl, carries the trade name, Sublimaze. The facts in this case show that the Respondent, Frank Rudolph Solimena, was acting as a horse trainer on October 30, 1978, at the Calder Race Course in Broward County, Florida. On that date, Triple Rhythm, a horse trained by the Respondent, ran in the eighth race and finished in second place. Following the race, and on the same date, a urine specimen was taken from the horse, Triple Rhythm. That urine specimen was subsequently analyzed through a series of tests and the test directed to the urine sample revealed a positive identification of a substance known as Despropionyl Fentanyl, which is classified as a derivative of Fentanyl, a narcotic. The process which occurred in Triple Rhythm after he received the Fentanyl, was that that Fentanyl was metabolized in the horse's system to become Despropionyl Fentanyl, and that latter substances acted as a central nervous system stimulant in the horse during the course of the race. The narcotic, Fentanyl, carries the trade name, Sublimaze. Each of the horses referred to above was under the care and treatment of Carl J. Meyer, D.V.M., on the dates of the races in question. In addition to treating the horses that are the subject to this complaint, Dr. Meyer had treated other horses for which the Respondent was the trainer, beginning in 1976 and continuing through October of 1978. One of the conditions for which the disputed horses reportedly received treatment was a condition described by Dr. Meyer as Myopathy, and this treatment form was administered to each of the questioned horses on the date of the disputed race event. According to dr. Meyer, Myopathy is a treatment for muscle soreness and is a type of acupuncture in which needles are injected at pressure points over the sore muscles and authorized medications are injected into those muscle areas, to include ACTH, Steroids and Lasix. When the Respondent received one of the billing statements from Dr. Meyer which indicated that horses that were being trained by the Respondent had been treated for Myopathy, the Respondent inquired of Dr. Meyer what Myopathy treatments consisted of. Dr. Meyer replied that you take a needle and put in certain pressure points in the muscle to relieve bursitis and/or pressure. When questioned in the course of the hearing about further details of the treatment for Myopathy, Dr. Meyer was unable to give a satisfactory explanation of the origins of the treatment for Myopathy and literature related to that treatment which might have been published through research in veterinary medicine. Within the same time frame that Dr. Meyer claimed to be treating the subject horses for Myopathy, he had purchased the substance, Sublimaze, and by his testimony stated that this narcotic had been used on horses other than those involved in this accusation. The use in the unrelated group of horses was as a pre-anesthetic agent and to treat colic conditions. He claimed to use 10 milligrams as a pre-anesthetic dose and as much as 25 milligrams over a period of time to control the colic condition. The utilization of Sublimaze as a pre-anesthetic agent and for treatment for colic was disputed in the course of the hearing by the testimony of Dr. George Maylin, D.V.M., who also has a Ph.D. in pharmacology. At the time Dr. Maylin gave his testimony, he was an associate professor of toxicology at the New York State College of Veterinary Medicine, Cornell University, Ithica, New York. Dr. Maylin has done extensive research on the effect of Sublimaze as a pre-anesthetic agent and concludes that it is not a predictable anesthetic agent, and that a 10 milligram dosage would not have a desired effect in its use as a pre-anesthetic agent. In dr. Maylin's opinion, 50 milligrams would be the indicated amount. In addition, Dr. Maylins' testing of Sublimaze in a colic model situation pointed out the ineffectiveness of Sublimaze as an analgesic in those colic cases. Finally, Dr. Maylin does not believe that 25 milligrams of Sublimaze over an extended period of time could be effective in treating the colic condition. Other trainers had horses which had been treated by Dr. Meyer around the same time period as those horses of the Respondent, which are the subject of this hearing. Those trainers are Ohayneo Reyes and Edward E. Plesa. Both Reyes and Plesa questioned Dr. Meyer on the subject of Meyer injecting Sublimaze in their race horses. These questions were asked following accusations placed against those trainers for violations similar to those in the current case of the Respondent. The answers given to Reyes and Plesa by Dr. Meyer indicated that he had in fact injected the horses with Sublimaze, but he told them not to worry because the substance could not be detected. Dr. Meyer also testified in the coarse of the hearing that he had placed wagers on some of the horses being treated for Myopathy. An analysis of the evidence leads to the factual conclusion that Dr. Meyer infused each of the horses for which the Respondent stands accused through this Notice to Show Cause, with Sublimaze, otherwise identified as Fentanyl; and that he gave these injections under the guise of a treatment for Myopathy, when in fact the so-called treatment for Myopathy was a ruse to enable Dr. Meyer to administer the Sublimaze. Those acts by Dr. Meyer directed to the horses of the Respondent involved in this accusation, were unknown to the Respondent at the time the injections were administered and nothing that had transpired prior to those administrations placed the Respondent in the position of having reason to believe that Dr. Meyer was pursuing this course of conduct. In summary, although the horses in question ran in the subject races while under the effects of Fentanyl, metabolized to become Despropionyl Fentanyl, it was not through any acts of the Respondent.
Recommendation It is recommended that the action through the Notice to Show Cause against the Respondent, Frank Rudolph Solimena, be DISMISSED. DONE AND ENTERED this 23rd day of August, 1979, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: W. S. Frates, Esquire Frates, Floyd, Pearson, Stewart, Richman & Greer, P.A. One Biscayne Tower, 25th Floor Miami, Florida 33131 David M. Maloney, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Joel S. Fass, Esquire Colodny and Fass 626 Northeast 124th Street North Miami, Florida 33181 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF BUSINESS REGULATION DIVISION OF PARI-MUTUEL WAGERING STATE OF FLORIDA, DEPARTMENT OF BUSINESS REGULATION, DIVISION OF PARI-MUTUEL WAGERING, Petitioner, vs. CASE NO. 79-228 FRANK RUDOLPH SOLIMENA, Respondent. /
The Issue The Petitioner, Division of Pari-Mutuel Wagering, issued charges against the Respondent, Gulfstream Park Racing Association, Inc., alleging that Gulfstream violated Section 550.487, F.S., in its computation of purses awarded during its 1976 racing season. Respondent, Gulfstream Park Racing Association, Inc., is a corporation that operates Gulfstream Park Race Track, a thoroughbred horse racing establishment. The issues concerned in this proceeding were whether Gulfstream in fact incorrectly computed the amount of money it should have awarded in purses and if so whether it should suffer any penalty. Section 550.487, F.S., states: "Four-seventeenths of the commission authorized by s. 550.16 to be withheld by each of the winter thoroughbred licensees from its pari-mutuel pool, the same being equivalent to 4 percent of the pari-mutuel handle, shall be paid by each track for purses during its respective racing period. Computation of such 4 percent shall be based upon the previous year's average daily handle times the number of days authorized for the period operated by each respective permittee during its current racing year." According to the Petitioner, this statute requires each race track to compute its average daily handle for the previous year and multiply 4 percent of that figure by the number of racing days granted in a current season. The resultant figure would give the purse requirement. This system however was not used by the Respondent. Instead various estimates were used in an attempt to compute what was projected to be the average daily handle of Gulfstream for 1976. Since the race track had been granted different racing days, Gulfstream felt it would be unfair to use the 1975 average daily handle in computing the purse requirements for 1976. Using its own system, Gulfstream arrived at a figures of $2,536,000 to be awarded as purses in the 1976 season. The Petitioner, Division of Pari-Mutuel Wagering, on the other hand, calculated that $2,701,562.88 should have been awarded as purses during that 1976 season. That figure was arrived at by multiplying $1,184,896 (Gulfstream's 1975 average daily handle) by 57 days (Gulfstream's racing season for 1976). The resulting figure is then multiplied by 4 percent as required in Section 550.487, F.S. Gulfstream arrived at its lower figure by coming to the conclusion that the statutory requirement was unfair. After examining what the statute required and what the projected impact upon Gulfstream was, the management of Gulfstream decided they would recompute their purses based on their interpretation of what was fair under the circumstances. The difference between the amount computed by the Division of Pari-Mutuel Wagering and Gulfstream amounts to $165,562.88. After reviewing the statutory requirements it is clear that Gulfstream's computation of purses is in violation of the above quoted Florida Statute. That statute clearly and unequivocally computes purses for the current racing season by taking a percentage of the average daily handle of the previous year. Gulfstream thought this was unfair and purposefully devised its own computation which it believed to be more equitable. Whether or not it was more equitable depends on one's point of view. It is without a doubt, however, that Gulfstream's method did not follow the statutory requirements. It is equally clear that Gulfstream thereby avoided paying over $165,000 in purses to the thoroughbred owners. Since it is determined that Gulfstream did violate the above statutes, the question then becomes the imposition of the appropriate penalty. Section 550.07, F.S., states in part: ". . . the division after notice and hearing may impose a civil penalty against any licensee for violations of this chapter or chapter 551, or any rule or regulation promulgated by the division. No penalty so imposed shall exceed $1,000 for each count or separate offense " Gulfstream argues that the charges issued by the division contain only one count and therefore they are liable for a $1,000 civil penalty. On the other hand the division maintains that the act was violated each time a race was run by Gulfstream. After reviewing the charges filed it is clear that sufficient notice was given to Gulfstream that the Division of Pari-Mutuel Wagering contended that each purse awarded by it was in violation of the statute. The total amount actually awarded as racing purses by Gulfstream is the sum of every purse of every race for the year in question. The total is the sum of the parts. Where the entire amount is deficient by incremental steps each must be considered a separate cause of the violation. From the proof offered at the hearing of this proceeding it can be concluded that each time a purse was awarded by Gulfstream constituted a separate offense under the statute. Therefore, after reviewing all the evidence in the case and considering the amount by which Gulfstream has profited from its unilateral interpretation of the statute, it is recommended that a civil penalty be assessed against Gulfstream in the amount of $250,000.00. DONE and ENTERED this 25th day of February, 1977, in Tallahassee, Florida. KENNETH G. OERTEL, Director Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Charles F. Tunnicliff, Esquire Staff Attorney Department of Business Regulation Division of Pari-Mutuel Wagering 725 South Bronough Tallahassee, Florida 32304 Leonard Romanik, Esquire P. 0. Box 1040 Hollywood, Florida 33022
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.
The Issue Should Petitioner impose discipline against Respondent's Pari-Mutuel Wagering Occupational License, and other relief for alleged violation of Section 550.2415(1)(a), Florida Statutes (2005)?
Findings Of Fact Between May 24, 2005 and June 18, 2005, Respondent held a Pari-Mutuel Wagering Occupational License, number 1102016- 1021, issued by Petitioner. On May 25, 2005, Respondent was the trainer of record of a racing greyhound named "Lips Are Sealed." On May 25, 2005, "Lips Are Sealed" was entered, and finished first (1st), in the second (2nd) race of the performance at Pensacola Greyhound Track. Immediately following the second (2nd) race of the performance at Pensacola Greyhound Track on May 25, 2005, urine sample number 129287 was collected from "Lips Are Sealed." The University of Florida Racing Laboratory tested urine sample number 129287 and found it to contain Benzoylecgonine (a metabolite of Cocaine), and/or a derivative thereof. Benzoylecgonine (a metabolite of Cocaine), and/or a derivative thereof, is an impermissible substance, that was carried in the body of "Lips Are Sealed" while participating in the second (2nd) race of the performance at Pensacola Greyhound Track on May 25, 2005. On June 1, 2005, Respondent was the trainer of record of a racing greyhound named "Red Eyed Fever." On June 1, 2005, "Red Eyed Fever" was entered, and finished first (1st), in the fourth (4th) race of the performance at Pensacola Greyhound Track. Immediately following the fourth (4th) race of the performance at Pensacola Greyhound Track on June 1, 2005, urine sample number 129348 was collected from "Red Eyed Fever." The University of Florida Racing Laboratory tested urine sample number 129348 and found it to contain Benzoylecgonine (a metabolite of Cocaine), and/or a derivative thereof. Benzoylecgonine (a metabolite of Cocaine), and/or a derivative thereof, is an impermissible substance, that was carried in the body of "Red Eyed Fever" while participating in the fourth (4th) race of the performance at Pensacola Greyhound Track on June 1, 2005. On June 16, 2005, Respondent was the trainer of record of a racing greyhound named "Stubborn Kind." On June 16, 2005, "Stubborn Kind" was entered, and finished first (1st), in the first (1st) race of the performance at Pensacola Greyhound Track. Immediately after the first (1st) face of the performance at Pensacola Greyhound Track on June 16, 2005, urine sample number 129469 was collected from "Stubborn Kind." The University of Florida Racing Laboratory tested urine sample number 129469 and found it to contain Benzoylecgonine (a metabolite of Cocaine), and/or a derivative thereof. Benzoylecgonine (a metabolite of Cocaine), and/or a derivative thereof, is an impermissible substance, that was carried in the body of "Stubborn Kind" while participating in the first (1st) race of the performance at Pensacola Greyhound Track on June 16, 2005. On June 17, 2005, Respondent was the trainer of record of a racing greyhound named "Drinktil Hescute." On June 17, 2005, "Drinktil Hescute" was entered, and finished first (1st), in the fifth (5th) race of the performance at Pensacola Greyhound Track. Immediately following the fifth (5th) race of the performance at Pensacola Greyhound track on June 17, 2005, urine sample number 129479 was collected from "Drinktil Hescute." The University of Florida Racing Laboratory tested urine sample number 129479 and found it to contain Benzoylecgonine (a metabolite of Cocaine), and/or a derivative thereof. Benzoylecgonine (a metabolite of Cocaine), and/or a derivative thereof, is an impermissible substance, that was carried in the body of "Drinktill Hescute" while participating in the fifth (5th) race of the performance at Pensacola Greyhound Track on June 17, 2005.
Recommendation Upon consideration of the facts found and the conclusions of law reached, it is RECOMMENDED: That a final order be entered revoking the occupational license held by Respondent, imposing a $5,000.00 fine and requiring the return of the race purses. DONE AND ENTERED this 27th day of June, 2006, in Tallahassee, Leon County, Florida. S CHARLES C. ADAMS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of June, 2005. COPIES FURNISHED: Stefan Thomas Hoffer, Esquire Department of Business and Professional Regulation Division of Pari-Mutuel Wagering 1940 North Monroe Street Tallahassee, Florida 32399-2202 Thomas M. Dudley, Sr. 327 Northeast 434 Street Old Town, Florida 32680 David J. Roberts, Director Division of Pari-Mutuel Wagering Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Josefina Tamayo, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202
