Findings Of Fact Petitioner is a horse trainer licensed in the State of Florida, and holds Occupational License No. L-25378. Respondent is a division of the Department of Business Regulation, and is charged by law with regulatory authority over Florida's pari-mutuel wagering industry. On May 5, 1979, Respondent issued an administrative complaint, seeking to fine, suspend or revoke Petitioner's occupational license, alleging that Petitioner had violated Rules 7E-4.25(16) and 7E-4.02(17)(a), Florida Administrative Code. The administrative complaint alleges that on December 7,1 979, a search of Petitioner's automobile, conducted pursuant to Rule 7E-4.02(3), Florida Administrative Code, revealed certain prohibited drugs and other items including Didrex, Narcan, Levophed, cannabis or marijuana, and hypodermic syringes and needles. The facts alleged in the administrative complaint presently are pending before the Division of Administrative Hearings in Division of Administrative Hearings Case no. 80-1147.
The Issue Whether Respondent, Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering (“Division”), relied on an unadopted rule when it issued a 2016-2017 annual operating license and cardroom license to the South Florida Racing Association, LLC, d/b/a Hialeah Park (“Hialeah”), and continued to authorize slot machine operations at Hialeah beyond June 30, 2016.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing and the entire record in this proceeding, including the parties’ Joint Prehearing Stipulation, the following Findings of Fact are made: The FQHRA is a Florida not-for-profit corporation located in Tallahassee. It comprises members in good standing of its parent organization, the American Quarter Horse Association. The FQHRA describes its mission as promoting the owning, breeding, and racing of Florida-bred quarter horses. The FQHRA represents 602 breeders, owners, and trainers of quarter horses, many of whom have participated in the annual quarter horse meet at Hialeah Park. During the 2015-2016 racing season, 535 members of the FQHRA participated at Hialeah Park in a full schedule of live racing. The FQHRA is named specifically in statutes related to quarter horse racing in Florida. It is the statutory “default” horsemen’s association for purposes of setting the schedule of racing at quarter horse racetracks and representing quarter horse owners in negotiating purse agreements with quarter horse permitholders pursuant to sections 550.002(11), 551.104(10)(a)2. and 849.086(13)(d), Florida Statutes. Hialeah is the holder of a horse racing permit that authorizes it to conduct quarter horse racing at its facility, Hialeah Park, in Miami-Dade County, Florida. The Division is the state agency responsible for implementing and enforcing Florida’s pari-mutuel laws, including the licensing and regulation of all pari-mutuel activities conducted in the state. The Division’s regulatory duties include the adoption of “reasonable rules for the control, supervision, and direction of all applicants, permittees, and licensees and for the holding, conducting, and operating of all racetracks, race meets, and races held in this state.” § 550.0251(3), Fla. Stat. Gambling is generally prohibited under Florida law. See chapter 849, Florida Statutes, establishing criminal penalties for many forms of gambling.1/ However, certain types of pari-mutuel activities, including wagering on horse racing, have been authorized. In recent years, the Legislature has expanded the gambling activities that may occur at the facilities of licensed pari-mutuel permitholders by authorizing the operation of slot machines and cardrooms at pari-mutuel facilities. These operations are conditioned upon licensing requirements that include having a “binding written agreement” with the FQHRA or “the association representing a majority of the horse owners and trainers at the applicant’s eligible facility” as to the payment of purses on live quarter horse racing conducted at the facility. §§ 551.104(10)(a)2. and 849.086(13)(d)3., Fla. Stat. These conditions are commonly referenced as “coupling” the expanded gambling operations with the promotion of horse racing in the state. The Legislature has enacted specific conditions to be met by applicants for slot machine and cardroom licenses to ensure that coupling occurs. Section 551.104, the slot machine licensing statute, sets forth conditions specific to thoroughbred racing and similar conditions specific to quarter horse racing. For purposes of this proceeding, the quarter horse provision at subsection (10)(a)2. is relevant: No slot machine license or renewal thereof shall be issued to an applicant holding a permit under chapter 550 to conduct pari- mutuel wagering meets of quarter horse racing unless the applicant has on file with the division a binding written agreement between the applicant and the Florida Quarter Horse Racing Association or the association representing a majority of the horse owners and trainers at the applicant’s eligible facility, governing the payment of purses on live quarter horse races conducted at the licensee’s pari-mutuel facility. The agreement governing purses may direct the payment of such purses from revenues generated by any wagering or gaming the applicant is authorized to conduct under Florida law. All purses shall be subject to the terms of chapter 550. Section 849.086(13)(d)3. contains a virtually identical condition for a quarter horse racing permitholder seeking to operate a cardroom at its facility: No cardroom license or renewal thereof shall be issued to an applicant holding a permit under chapter 550 to conduct pari-mutuel wagering meets of quarter horse racing unless the applicant has on file with the division a binding written agreement between the applicant and the Florida Quarter Horse Racing Association or the association representing a majority of the horse owners and trainers at the applicant’s eligible facility, governing the payment of purses on live quarter horse races conducted at the licensee’s pari-mutuel facility. The agreement governing purses may direct the payment of such purses from revenues generated by any wagering or gaming the applicant is authorized to conduct under Florida law. All purses shall be subject to the terms of chapter 550. Once a track obtains its initial permit from the Division to conduct a particular type of pari-mutuel wagering, it must thereafter apply annually to the Division and obtain a license to conduct pari-mutuel operations. The license authorizes the track to conduct pari-mutuel wagering performances under its permit on the specific dates identified on the license. A permitholder must file its application between December 15 and January 4, for a license to conduct performances during the next state fiscal year, i.e., July 1 through June 30. The permitholder is entitled to amend its application through February 28. § 550.01215(1), Fla. Stat. The Division is also responsible for issuing licenses for cardroom gaming at a licensed pari-mutuel permitholder's facility. "A cardroom license may only be issued to a licensed pari-mutuel permitholder and an authorized cardroom may only be operated at the same facility at which the permitholder is authorized under its valid pari-mutuel wagering permit to conduct pari-mutuel wagering activities." § 849.086(5)(a), Fla. Stat. After initial issuance, a cardroom operator must apply annually for renewal of its cardroom license, which must be submitted in conjunction with the annual application for the pari-mutuel license. § 849.086(5)(b), Fla. Stat. To maintain its eligibility to operate cardrooms, the licensee must: [h]ave requested, as part of its pari-mutuel annual license application, to conduct at least 90 percent of the total number of live performances conducted by such permitholder during either the state fiscal year in which its initial cardroom license was issued or the state fiscal year immediately prior thereto if the permitholder ran at least a full schedule of live racing or games in the prior year. § 849.086(5)(b), Fla. Stat. The Division is also responsible for authorizing slot machine operations through the issuance of annual licenses pursuant to sections 551.104 and 551.105. As with cardrooms, slot machines may only be operated at a permitholder's eligible facility identified in a valid pari-mutuel wagering permit. § 551.104(3), Fla. Stat. As a condition of licensure, the slot machine licensee must conduct "no fewer [sic] than a full schedule of live racing or games as defined in s. 550.002(11)." § 551.104(4)(c), Fla. Stat. Section 550.002(11) sets forth the definition of “full schedule of live racing or games.” As to quarter horse permitholders, the definition provides, in relevant part: “Full schedule of live racing or games” means . . . for a quarter horse permitholder at its facility unless an alternative schedule of at least 20 live regular wagering performances is agreed upon by the permitholder and either the Florida Quarter Horse Racing Association or the horsemen’s association representing the majority of the quarter horse owners and trainers at the facility and filed with the division along with its annual date application . . . for every fiscal year after the 2012-2013 fiscal year, the conduct of at least 40 live regular wagering performances. Hialeah began quarter horse racing in 2009, partnering with the FQHRA to obtain initial approval from the Division to operate slot machines at the Hialeah Park facility. The FQHRA provided the horses and trainers needed by Hialeah to conduct two quarter horse race meets, one at the end of 2009 and one at the beginning of 2010. These race meets were timed to meet the definition of “eligible facility” set forth in section 551.102(4), which provides in relevant part that a licensed pari-mutuel facility may apply for a slot machine license “provided such facility has conducted live racing for 2 consecutive calendar years immediately preceding its application.” Hialeah and FQHRA entered into exclusive horsemen's agreements,2/ hereinafter referred to collectively as the “FQHRA Agreement,” to govern the payment of purses on live quarter horse races conducted at Hialeah's pari-mutuel facility for the 2009-2010 racing season through the 2015-2016 racing season. The FQHRA Agreement was valid through June 30, 2016. The last quarter horse race at Hialeah for the 2015-2016 season was February 29, 2016. As noted above, section 550.01215(1) requires a pari- mutuel permitholder to file its license renewal application between December 15 and January 4 for the next state fiscal year, and permits the applicant to amend its application through February 28. Section 550.01215(2) requires the Division to issue the license no later than March 15. Cardroom licenses must also be renewed annually, in conjunction with the applicant’s annual application for its pari-mutuel license. § 849.086(5)(b), Fla. Stat. Slot machine licenses are valid for one year and must be renewed annually. § 551.105(1), Fla. Stat. Hialeah’s most recent slot machine license was issued on December 11, 2015. In September 2015, it was apparent that Hialeah might be looking for options other than entering into a horsemen’s agreement with the FQHRA for the 2016-2017 season. On or about September 15, 2015, Hialeah's legal counsel, Andrew Lavin, met with Jonathan Zachem, then the director of the Division, and Jason Maine, legal counsel for the Division, to discuss several issues, including the upcoming application process. In a follow-up letter to Mr. Maine and Mr. Zachem, Mr. Lavin wrote: During our meeting you confirmed that the Division has on file SFRA's purse agreement with the Florida Quarter Horse Racing Association, which expires on June 30, 2016 (the "SFRA/FQHRA Agreement"). You also confirmed that the SFRA/FQHRA Agreement serves as the requisite agreement for SFRA's applications for its upcoming slots license and cardroom license. SFRA shall file its application accordingly. You further explained that it is the Division's position that by the expiration date of the SFRA/FQHRA Agreement, SFRA is required to have a new agreement on file with the Division that is effective as of July 1, 2016, and that meets the requirements of § 551.104(10)(a)(2), Fla. Stat., and § 849.086(13)(d)(3), Fla. Stat. Mr. Zachem confirmed that the meeting occurred and did not dispute the substance of Mr. Lavin’s letter. Representatives of the FQHRA met independently with the Division's leadership, including Jonathan Zachem and Jason Maine, in mid-September 2015, to discuss FQHRA's concerns with respect to Hialeah's license applications and the negotiations with Hialeah for a new horsemen's agreement for the 2016-2017 fiscal year. FQHRA came away from this meeting with the understanding that the Division would rely on the FQHRA Agreement to allow Hialeah to continue slot machine operations until the agreement expired on June 30, 2016, and that a new horsemen’s agreement would have to be in place for Hialeah to renew its cardroom license. Hialeah received a renewal of its slot machine license on December 11, 2015. In issuing this license, the Division relied on the FQHRA Agreement that would expire on June 30, 2016. Hialeah electronically submitted its application for its 2016-2017 racing license and cardroom gaming license on December 23, 2015. On February 26, 2016, Hialeah electronically submitted an amended application for its annual racing license. At the time of Hialeah’s applications for its 2016-2017 racing and cardroom licenses, the FQHRA Agreement was the only purse agreement in the Division’s files for Hialeah. In its December 2015 filings, Hialeah requested a full schedule of live racing and renewal of its cardroom gaming license for the 2016-2017 race year. A "full schedule of live racing" for the 2016-2017 quarter horse meet at Hialeah Park would be 40 live regular wagering performances, absent an alternative schedule agreed to by Hialeah and either the FQHRA or the horsemen's association representing the majority of the owners and trainers at Hialeah. Jamie Pouncey is the Division employee responsible for reviewing license applications for completeness. Ms. Pouncey has no authority to approve or reject license applications. Only the Division director has approval authority. Ms. Pouncey testified that having a valid horsemen’s agreement on file is a requirement for purposes of processing the cardroom application and for issuing the operating license. In reviewing Hialeah’s racing license application, Ms. Pouncey utilized a Division checklist that enumerated the necessary forms and other requirements. One of the items on that checklist stated: “a copy of the binding written agreements between the facility and respective associations (horsemen’s agreement) as required by section 849.086(13)(d)(3), Florida Statutes (Quarter Horse Only).” Ms. Pouncey marked the checklist to indicate that Hialeah met this requirement. In so doing, Ms. Pouncey relied on the FQHRA Agreement, which remained valid until June 30, 2016. On February 25, 2016, Dr. Steven Fisch, a former president and current board member of the FQHRA, sent an email to Ms. Pouncey inquiring whether Hialeah had applied for its 2016-2017 quarter horse racing license and whether it had submitted a horsemen's agreement. Ms. Pouncey responded that "there is one on file valid through 06/30/2016," and later confirmed to Dr. Fisch that the FQHRA Agreement was the only one on file for Hialeah at that time. On February 26, 2016, Hialeah electronically transmitted its amended racing license application to the Division. The amended application requested to run a reduced schedule of 36 performances instead of the full schedule of 40 requested in the December 2015 filing. At the time the amended application was filed, the only horsemen’s agreement on file at the Division for Hialeah remained the FQHRA Agreement, which included no deviation from the 40-performance schedule. On March 8, 2016, Ms. Pouncey indicated on the Division's checklist that Hialeah's amended application for a racing license and its application for a cardroom gaming license were complete, with all the necessary documentation in place. She forwarded Hialeah's renewal applications to Mr. Zachem, along with draft licenses for his signature. Ms. Pouncey testified that in her application review, she does not look at the issue of whether the applicant is requesting less than a full schedule of live racing dates. She had no specific recollection of whether Hialeah requested less than a full schedule. She made no assessment of whether 36 dates constitutes less than a full schedule. Ms. Pouncey testified that she would “consult management” if the issue arose during her application review, but stated that she did not do so regarding Hialeah’s application. On March 15, 2016, Hialeah electronically submitted to the Division a horsemen’s agreement between Hialeah and the SFQHA (the “SFQHA Agreement”). It represented that the SFQHA would be the horsemen’s association representing the majority of the horsemen at Hialeah Park effective July 1, 2016. Also on March 15, 2016, the SFQHA’s articles of incorporation were filed with the Secretary of State. Regarding who would represent the majority of the horsemen at Hialeah, the preamble of the SFQHA Agreement states: WHEREAS, because only horses owned by members of SFQHA will be eligible to participate in races during the race meet, the SFQHA is the horsemen's association that represents all of the horse owners and trainers at SFRA's facility who will participate in the live quarter horse events that will be conducted by Hialeah at Hialeah Park during the race meet to which this Agreement is applicable. The substance of the SFQHA Agreement elaborates as follows: 13. For and in consideration of the purse payments that Hialeah has agreed to make as provided in paragraph 4 above, Hialeah agrees that it will accept entries during the Race Meet only from owners and/or trainers: (a) that appear on the membership roll of the SFQHA as a member in good standing; and (b) that have on file with Hialeah a photocopy of an executed original “Pledge Card” in the form attached as Exhibit A whereby said owner and/or trainer has appointed the SFQHA to represent said owner and/or trainer for the purposes stated in § 550.002(11); § 551.104(10); § 849.086(13); and the IHA [Interstate Horseracing Act of 1978]. The SFQHA shall maintain up to date membership information that it will provide to Hialeah in order for Hialeah to comply with the requirements of this paragraph. Furthermore, Hialeah and the SFQHA agree that all entries shall be horses from qualifying breeds that have either been bred in the State of Florida or have been permanently based in the State of Florida during the calendar year preceding the day on which the horse is entered to race at Hialeah Park. No exceptions will be granted to the requirements of this paragraph. Regarding whether Hialeah would be required to run a full schedule of 40 performances during the racing season, the SFQHA Agreement states: 3. The parties agree that Hialeah has the managerial prerogative to determine the dates and the number of operating performances for which Hialeah shall seek authorization when filing an application for an operating license. * * * 12. The SFQHA hereby authorizes Hialeah to file this Agreement with the Division evidencing compliance by Hialeah with the provisions of Chapters 550, 551 and 849 that require the filing of this Agreement with the Division of Pari-Mutuel Wagering as a condition precedent to annual operating, cardroom and/or slot machine licensure. Specifically with regard to the number of performances that Hialeah shall operate, the SFQHA hereby provides the consent required by § 550.002(11) to authorize Hialeah to operate 36 performances during the Race Meet. The authorizations, approvals and consents set forth in this Agreement shall remain in full force and effect through June 30, 2017. On March 15, 2016, the Division issued to Hialeah a permit to conduct quarter horse racing at Hialeah Park for the fiscal year 2016-2017. The license, signed by Mr. Zachem as director of the Division, authorized 36 regular performances, as requested by Hialeah’s amended application. The FQHRA contends that the Division's issuance of licenses to Hialeah is based on a new, unpromulgated policy that allows pari-mutuel permitholders to unilaterally control racing dates and purse decisions without the involvement of an independent horsemen's association. The FQHRA also alleges that the Division is operating pursuant to a new, unpromulgated policy of allowing amendments to license applications after February 28 of a given year. The FQHRA urges the conclusion that the Division's issuance of licenses to Hialeah represents a new policy and/or interpretation of the statutory requirements that have not been promulgated as required by chapter 120, Florida Statutes. The FQHRA alleges that the Division's actions and new interpretations effectively authorize "decoupling" by allowing pari-mutuel permitholders to unilaterally control racing dates and purse agreements. The FHQRA presented extensive testimony regarding the Legislature’s intent when it established the requirement of a horsemen’s agreement between a permitholder and a horsemen’s association as a condition of licensure to operate slot machines or cardrooms, and the need for arm’s length negotiations in establishing those agreements. Dr. Fisch was involved in the effort in the late 1990s and early 2000s to found the FQHRA and re-establish quarter horse racing in Florida. He testified that an independent horsemen's association, genuinely representing the interests of the horsemen in negotiations with the permitholder, is necessary to promote the stability of the industry. The purse payments from the track must be sufficient to entice the horsemen, who incur substantial expenses, to provide horses for the races. A single race meet can result in the horsemen collectively investing millions of dollars. Dr. Fisch stated that fewer horsemen will race and enter into the horse racing industry if horsemen are excluded from purse negotiations and the number of races is arbitrarily reduced. Racing and its purse payments drive the horse breeding industry, which is important to the economy of the state. Dr. Fisch testified that if the horsemen's association is not independent from the track, then the track can dictate the purse payments and racing dates without input from the horsemen, a situation contrary to the intent and purpose of coupling expanded gaming opportunities with the continued healthy operation of horse racing. Dr. Fisch testified that the FQHRA offers membership to any owner or trainer racing at Hialeah Park. The FQHRA issues membership cards stating that the member has chosen FQHRA to represent him in track negotiations and legislative endeavors. Membership can be obtained online, and is renewed automatically every year. Dr. Fisch stated that people may opt out of membership in the FQHRA and still race at the facility. The FQHRA contends that the SFQHA is a sham organization established and controlled by Hialeah as a means to effectively skirt the coupling requirement of the relevant statutes. At the hearing, it was established that the SFQHA had no members as of March 14, 2016, the date on which the SFQHA Agreement was submitted to the Division, or as of March 15, 2016, the date the racing and cardroom licenses were issued. In deposition testimony, Wesley Cox, a founding board member of the SFQHA (since resigned), testified that the SFQHA had no signed pledge cards from members as of September 20, 2016. The FQHRA asserts that, as of the dates of the SFQHA Agreement and Hialeah’s license issuance, it was the only horsemen’s association representing a majority of the owners and trainers at Hialeah, by virtue of the ongoing FQHRA Agreement. Therefore, the FQHRA was the only entity authorized to enter a valid horsemen’s agreement with Hialeah. The FQHRA points out that the Division was presented with plentiful reasons to inquire whether the SFQHA was a “captive” association created by Hialeah. Even though both Hialeah and the FQHRA had made several inquiries to the Division regarding the license renewal requirements and the recognized horsemen's association for Hialeah, the Division made no effort to establish whether the SFQHA actually represented a majority of the owners and trainers at Hialeah at the time the SFQHA Agreement was submitted on March 15, 2016. The Division’s position is that the date of Hialeah’s license issuance was the correct time to ascertain which horsemen’s association represented a majority of the owners and trainers at Hialeah Park, because no racing was occurring at that time. There were no owners or trainers at Hialeah Park as of March 15, 2016. When asked whether the Division checked for SFQHA membership cards upon receiving the SFQHA Agreement, Mr. Zachem stated that “it wouldn’t have been possible yet” because Hialeah had not “had performances since [the filing of the SFQHA Agreement] for us to be able to.” The Division reads the language of sections 551.104(10)(a)2 and 849.086(13)(d)3. in literal terms: a “binding written agreement between the applicant and the [FQHRA] or the association representing a majority of the horse owners and trainers at the applicant’s eligible facility” must be “on file with the division” at the time the license is issued. At all times pertinent to this proceeding, there was a binding written agreement on file with the Division: the FQHRA Agreement that expired on June 30, 2016, and the SFQHA Agreement that commenced on July 1, 2016. The Division’s position is that the agreement in effect at the time the license is issued need not be the same agreement that will be in effect at the time the race meet is underway. Nothing in the statutes gainsays the Division’s position. The Division has not here acted according to an unadopted rule but pursuant to the language found on the face of the statute. No new policy has been announced, no interpretation was necessary. The only novel aspect of this licensing determination is that Hialeah has changed horsemen’s associations, an event clearly contemplated by sections 551.104(10)(a)2. and 849.086(13)(d)3. The FQHRA’s position is that Hialeah should be required to run its 2016-2017 race meet using the horsemen’s association with which it had an agreement on file with the Division at the time of the application. In other words, Hialeah has no alternative but to enter a new horsemen’s agreement with the FQHRA, using the slot machine statute’s arbitration process if necessary. See § 551.104(10)(c), Fla. Stat. Acceptance of the FQHRA’s position would make it difficult, if not impossible, for a quarter horse permitholder to ever dislodge an incumbent horsemen’s association. The statutes’ provision of alternatives--“the Florida Quarter Horse Racing Association or the association representing a majority of the horse owners and trainers at the applicant’s eligible facility”--militates against the FQHRA’s position.3/ The Division concedes that FQHRA’s points regarding legislative intent and the need for an independent horsemen’s association may be valid as matters of policy. However, the Division argues that the statutes give it no authority to determine which is a “legitimate” and which is a “sham” or “puppet” horsemen’s association. The term “horsemen’s association” is undefined in statute. The Division’s position is that if it has on file a facially valid and binding horsemen’s agreement, the Division lacks any statutory ground not to issue the license. Both Dr. Fisch and William White, the president of the Florida Horsemen’s Benevolent and Protective Association, Inc. (“FHBPA”)(a thoroughbred horsemen’s association recognized in the slot machine statute, see § 551.104(10)(a), Fla. Stat.), repeatedly referred to the need for “legitimate” horsemen’s associations in the pari-mutuel industry. Mr. White defined a “legitimate” horsemen’s association as one that “can prove it’s the majority.” This statement led to the following colloquy with counsel for the Division, illustrating the difficulty of proving who is “legitimate”: Q. Okay. What about a situation like Dr. Fisch described, where not every member has cards? A. If you get proved as the majority, you wouldn't have to have everyone have the card. Q. How is that? A. Well, if you have 1,000 members and you have 600 cards, you're the majority. Q. Okay. But how do I know -- if you only have 600 cards, how do I know you've got 1,000 members? A. Well, in our particular case, our membership is anyone who has an owners or trainers license. Q. Sure. A. So if I have cards that are more than half of that number, then I've proven to you that we're the majority. Q. You understand we're not talking about your organization, though, right? A. Yes. Q. So talking about the quarter horse association, who, all members we've heard, do not have cards, how are we to know how many members they have? A. Well, how much time did you put into it to find out the answer to that question? Q. I think you misunderstand. You need to answer the question, not ask me questions. A. I cannot answer it because I do not know your effort that you put into it. Q. I'm asking how could we. A. Get on the phone and write some letters. Send some investigators out there, do some work. Q. To people who don't have cards? A. To get a pulse on what's going on out there. Q. Okay. And how would you suggest we get said pulse? A. It's--I'll give you the answer you guys usually give me. Q. Okay. A. It's not my job to tell you what to do. The FQHRA insists that the Division has a duty to investigate the organization and membership of a horsemen’s association prior to issuing a license based on an agreement between the association and a permitholder, and that its failure to do so in this instance constitutes a change in policy. This insistence is based on the FQHRA’s reading of In re: Petition for Declaratory Statement of Florida Horsemen’s Benevolent & Protective Association, Inc., Case No. DS 99-025 (Mar. 22, 2000), issued by the Division in response to a request by the FHBPA, which sought a declaratory statement on how the Division “determines how a horsemen’s group, such as Petitioner, is ‘the horsemen’s group representing a majority of thoroughbred race horse owners and trainers in this state’ within the meaning of Section 550.3551(6)(a), Florida Statutes.” The FQHRA asserts that the declaratory statement “declared that a new horsemen’s association seeking to represent the majority of the horsemen at a facility to replace an existing representative group must demonstrate support through the presentation of membership cards evidencing that the new group actually represents the majority of the horsemen.” However, it is clear from the language of the declaratory statement that the Division was not declaring a general intent or duty on its part to investigate a new horsemen’s association prior to issuance of a license, or stating a specific requirement that membership cards be presented as proof. Rather, the Division was placing the onus on the permitholder to ensure that the horsemen’s group represents a majority of licensees: Recognizing that the state may impose penalties against the permitholder for violations of section 550.3551, Florida Statutes, the permitholder should make every reasonable means [sic] to verify that the horsemen’s group represents the majority of licensees.[4/] It is a reasonable summation that to determine which (if more than one horsemen’s group representing thoroughbred horserace owners and trainers exist) of the horsemen’s groups represent the majority of the thoroughbred horserace owners and trainers, one must examine the membership roster of each association. Signed enrollment cards should substantiate membership rosters. The permitholder should also receive confirmation that the membership roster is comprised of licensed thoroughbred racehorse owners or trainers maintaining a “current” status in contrast to an “expired” status. The membership roster must then be compared to the total number of licensed thoroughbred racehorse owners and trainers in the state on that race day. While section 550.2614(2), Florida Statutes, may have provided a mandatory verification process for the horsemen’s association to certify that it represented a majority of the owners and trainers of thoroughbred horses in the state, the Court in Florida Horsemen Benevolent & Protective Association v. Rudder, 738 So. 2d 449 (Fla. 1st DCA 1999), ruled all of section 550.2614, Florida Statutes, unconstitutional. Nevertheless, said ruling does not prohibit the permitholder from seeking verification, independently from the statute, from the horsemen’s groups. Such verification may be accomplished by several means, one [of] which may include state verification of the number of current licensed thoroughbred racehorse owners and trainers, supplemented by an affidavit by the horsemen’s association that it represents a majority of those licensees.[5/] The Division believes that the methodology outlined above is consistent with the legislative intent that the permitholder seek approval of the majority represented for holding less than eight live races on any race day. The Division’s actions in the instant case were not inconsistent with the declaratory statement as to the nature of the horsemen’s association. In the instant case, Hialeah submitted a horsemen’s agreement that on its face appeared to be valid and binding. The Division accepted Hialeah’s implicit representation that it had used all reasonable means to verify that the SFQHA represented (or would represent, at the time the new agreement took effect) a majority of the quarter horse owners and trainers at Hialeah Park. At the hearing, the Division stated that Hialeah’s representations could not be verified until the race meet begins. If events prove that the SFQHA does not represent a majority of the owners and trainers at Hialeah Park, then Hialeah will be subject to the disciplinary measures set forth in sections 551.014(10)(b) and 849.086(14). In the declaratory statement and in the instant case, the Division was consistent in claiming no duty or authority to investigate or take action against the permitholder prior to issuance of a license. The FQHRA also contends that the Division’s allowance of amendments to Hialeah’s application after February 28 constituted an unadopted rule. The Division counters that the filing of the SFQHA Agreement on March 14, 2016, was not an amendment of Hialeah’s application. Consistent with its position that the statute requires only that an agreement must be on file with the Division at the time an application is filed, and with the fact that the application form completed by the permitholder makes no reference to a horsemen’s agreement, the Division states that the agreement itself is not a part of the application. So far as this goes, the Division’s view is consistent with the statutes, none of which impose any deadline on the filing of a new horsemen’s agreement to take effect upon the expiration of the horsemen’s agreement already on file with the Division. However, the statutes in fact contemplate two agreements between the permitholder and a horsemen’s association. First, there is the mandatory “binding written agreement” regarding distribution of purses, for which the statutes provide no filing deadline. Second, there is the permissive agreement between the permitholder and the horsemen’s association regarding a reduction in the “full schedule of live racing” as defined by section 550.002(11). If the facility intends to run the full schedule of 40 racing performances, there is no need to file this agreement.6/ However, this second agreement does have a statutory deadline: it must be “filed with the division along with [the permitholder’s] annual date application.” This agreement is, in effect, part of the application if the permitholder is seeking approval of a reduced schedule for purposes of the cardroom and slot machine licensing requirements. The Division neglected to account for this deadline in concluding that Hialeah did not amend its application after February 28. Hialeah’s initial race dates and cardroom license application, filed December 23, 2015, requested a full schedule of 40 performances. Hialeah’s amended application, dated February 26, 2016, requested 36 performances, fewer than the statutory “full schedule” of 40. As of the application amendment deadline of February 28, 2016, Hialeah had not filed an agreement with any horsemen’s association for an “alternative schedule” reducing the statutory number of performances. Hialeah made such a filing only on March 15, 2016, when it submitted the SFQHA Agreement, which purported to “authorize Hialeah to operate 36 performances during the Race Meet” and generally consent to Hialeah’s “managerial prerogative” in determining the number of racing dates. The Division’s approval of Hialeah’s reduced operating schedule could only have been premised upon the SFQHA Agreement, which was not filed “along with . . . the annual date application,” even though in this respect it was part of the application. For purposes of the cardroom and slot machine license statutes, it is immaterial when the purse agreement has been filed so long as there is a valid agreement on file at the time the license is issued. Mr. Zachem accurately stated that the Division has no way of knowing whether the SFQHA is the majority horsemen’s association at Hialeah Park until the 2016-2017 race meet commences. The Division accepted the SFQHA Agreement on the premise that the SFQHA would represent, at the time of the race meet, a majority of the quarter horse owners and trainers at Hialeah Park, and that Hialeah would be subject to discipline against its license should that not come to pass. As to the purse agreement, the Division’s actions did not constitute an unadopted rule but a straightforward application of statutory language. However, the timing of the filing of the alternative schedule agreement is decisive. The deadline for filing the racing dates application was February 28, 2016. As of that date, the Division did know which horsemen’s association represented a majority of the owners and trainers at Hialeah Park because the 2015-2016 racing meet did not conclude until the following day, February 29, 2016. As of the filing deadline, the FQHRA was indisputably the majority horsemen’s association. As of the filing deadline, the SFQHA did not exist, even on paper. As of the filing deadline, no alternative schedule agreement had been filed with the Division.7/ Therefore, the Division’s action in approving Hialeah’s operating dates and cardroom licenses constituted either a waiver of the statutory deadline of February 28 for the filing of application amendments, or a waiver of the statutory requirement that a permitholder file an alternative schedule agreement in order to receive a license to run fewer than 40 live regular wagering performances. Such a waiver would perforce be generally applicable to any similarly situated applicant. The Division’s action in this respect constitutes an unadopted rule.
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's license should be summarily suspended in accordance with Subsection 550.2415(3)(b), Florida Statutes (2006).
Findings Of Fact The Division is the agency of the state responsible for monitoring and regulating all aspects of pari-mutuel wagering activities. One of its responsibilities is the testing of greyhound dogs for prohibited substances. Michaud holds pari-mutuel wagering license number 16293-1021 as a greyhound trainer. On June 23, 2006, Michaud was the registered trainer of a greyhound known as "Ikes Trudy." Michaud was working at the Sanford Orlando Kennel Club (also known and hereinafter referred to as "CCC Racing"). Ikes Trudy ran in the seventh race at CCC Racing on June 23, 2006, finishing fourth or fifth in that race. Upon conclusion of the race, a urine sample was taken from Ikes Trudy by a Division employee. The sample was taken in an area of CCC Racing set aside for that purpose. The testing site was not covered, i.e., it was open to the elements. However, there was no evidence of inclement weather at the time the test sample was taken. At the conclusion of each greyhound race, the winning dog is always tested. It is normal for the Division to randomly select another dog from the same race for testing as well. In this case, however, Ikes Trudy was specifically selected for testing by the Division. No other dog was randomly sampled. After the urine sample had been taken, a "Urine Sample Card" was completed by the Division employee, signed by Michaud, and placed in a coin envelope. The urine sample card identifies the greyhound as Ikes Trudy, the race track as CCC Racing, and the trainer as Michaud. The urine sample was then duly-processed and tested in accordance with procedures established by the Division. The test was performed at the University of Florida Racing Lab, a certified and accredited testing facility. David M. Tiffany supervised the testing procedure and signed the Report of Positive Result on the test sample. The test determined the presence of two metabolites of cocaine in the urine sample: Benzoylecgonine ("BZE") and Ecgonine Methyl Ester ("EME"). Cocaine is a Class 1 drug and is a prohibited substance in racing greyhounds. The BZE concentration in the sample was greater than 720 nanograms per milliliter or 720 ng/mL. The EME concentration was 62.9 ng/mL. The normal or average concentration of these metabolites, when found in a greyhound, is between 10 and 50 ng/mL. The highest level Mr. Tiffany had ever seen was approximately 120 ng/mL of BZE and that was in this same animal, Ikes Trudy. The question of how such a high concentration of these metabolites would affect an animal was not resolved at the final hearing. Michaud suggested such a level would kill the animal; Mr. Tiffany could not confirm that suggestion as factual. Mr. Tiffany did not think the extremely high concentration of metabolites in this test raised any questions about the testing process or its results.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering upholding the summary suspension of the license of Chad E. Michaud. DONE AND ENTERED this 28th day of August, 2006, 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 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of August, 2006. 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 Chad E. Michaud 27 Jackson Court Casselberry, Florida 32707 Josefina Tamayo, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 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
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
The Issue The issues in this case are whether Respondent, owner/trainer of record of a greyhound that finished in first place, a greyhound that finished in second place, and a greyhound that finished in third place in three separate races, and two greyhounds that ran and finished out of the money in two separate races, is legally responsible for the prohibited substance found in the urine sample of each of the five greyhounds taken immediately after each race in violation of Section 550.2415(1)(a), Florida Statutes, 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, Gregory H. Mitchell, was the holder of a professional individual occupational pari-mutuel license, number 129829, issued by the Division on July 1, 2002, with an expiration date of June 30, 2002. At all times relevant and material to this proceeding, the Sarasota Kennel Club was a permit holder authorized to conduct greyhound racing and pari-mutuel wagering in the State of Florida and was assigned track number 153 by the Division. The Division of Pari-Mutuel Wagering Form 503 identified the name and location of each race track where a greyhound's urine sample was collected. At all times relevant and material to this proceeding, Respondent was the owner/trainer of record for each of the greyhounds who were entered in races at the Sarasota Kennel Club on the following dates and who had urine samples immediately taken and examined: (1) March 1, 2002, "Fly Bye Pumpkint" finished third in the third race, and the urine sample collected was numbered 842141; (2) March 11, 2002, "Greys Ice Star" finished eighth in the eleventh race, and the urine sample collected was numbered 852361; (3) March 12, 2002, "Fly Bye Pumpkint" finished fifth in the fourth race, and the urine sample collected was numbered 852399; (4) March 13, 2002, "Twilite Hossplay" finished second in the third race, and the urine sample collected was numbered 852439; and (5) April 8, 2002, "Dia's- White-Tip" finished first in the fourth race, and the urine sample collected was numbered 852562. The hereinabove five urine samples were forwarded to the University of Florida Racing Laboratory. The Racing Laboratory tested the urine samples and found that each urine sample tested contained benzoylecognine, a metabolite that is found only in cocaine. Cocaine is a Class I drug according to the Association of Racing Commissioners International Classification System.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering, enter a final order in this matter revoking the occupational license of Respondent, Gregory H. Mitchell. It is further RECOMMENDED that the following fines be imposed upon Respondent in the amount of $1,000 for the first-place finish violation; $1,500 for the second-place finish violation; $2,000 for the third-place finish violation; $2,500 for the fourth-place finish violation; and $3,000 for the fifth-place finish violation, for a total fine of $10,000. It is further RECOMMENDED that the Division order the purses received by Respondent, as a result of the first-place finish, the second- place finish, and the third-place finish, be returned forthwith to the Division. DONE AND ENTERED this 22nd day of May, 2003, in Tallahassee, Leon County, Florida. FRED L. BUCKINE 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 22nd day of May, 2003. COPIES FURNISHED: Joseph M. Helton, Jr., Esquire Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-2202 Gregory H. Mitchell 1010 Villagio Circle Sarasota, Florida 34237 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202 David J. Roberts, Director Division of Pari-Mutuel Wagering 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
