The Issue The issue presented is whether Respondent is guilty of the allegations contained in the Administrative Complaint filed against him, and, if so, what disciplinary action should be taken against him, if any.
Findings Of Fact At all times material hereto, Respondent Philip J. Aleong has been licensed as a veterinarian in the State of Florida, having been issued license number VM 6466. Respondent has performed an average of 200 pre-purchase examinations of horses per year for the last ten years. In April 2003, John A. Damico, through his trainer Buddy Edwards, requested Respondent to perform a pre-purchase examination of a 2-year-old thoroughbred race horse identified with OBS Hip #512 at the Ocala Breeders Sale. Respondent did so. After the pre-purchase examination was performed, Damico purchased the race horse identified as OBS Hip #512 and named the horse "C. Brooke Run." The pre-purchase examination performed by Respondent consisted of an endoscopic evaluation, an evaluation of the horse jogging, and an examination of radiographs taken by Respondent of C. Brooke Run. As a horse in a pre-purchase examination has a limited veterinarian/patient relationship, limited records are kept by the examining veterinarian. For the purpose of a pre-purchase examination, sufficient medical records could consist of the horse's Hip number, the sale date of the horse, and a few words regarding the endoscopic examination of the horse, the short jogging of the horse, and the results of the radiographs taken of the horse. It is sufficient, therefore, if appropriate that the medical records simply note that the endoscopic examination and the jogging were normal and the radiographs showed no abnormalities. The average time spent reviewing radiographs taken at a pre-purchase examination is less than 30 seconds per film. During his pre-purchase examination of C. Brooke Run, Respondent took the necessary number of radiographs to perform a proper examination, including four radiographs of C. Brooke Run's left knee. During his pre-purchase examination of C. Brooke Run, Respondent contemporaneously created a medical record by noting in a notebook the results of the pre-purchase examination. After examining the radiographs taken, observing the horse jog, and performing an endoscopic examination of C. Brooke Run, Respondent determined that the horse had no medical problems or injuries. Between April 2003, when the pre-purchase examination was performed, and September 10, 2003, Damico, the horse's owner, raced the horse on July 20, August 22, and August 29. In addition to racing the horse three times, the horse's trainer worked out the horse at least six times. The trainer would not have worked out the horse or allowed it to race if he believed the horse had an injury. On September 10, 2003, C. Brooke Run suffered a "breakdown" that was determined to be caused by fractures in the horse's left knee. After the breakdown, Damico alleged that Respondent should have detected the fractures in the horse's left knee five months earlier during the pre-purchase examination performed by Respondent and that, since Respondent did not, Damico was damaged. Without admitting any liability or negligence in performing the April 2003 pre-purchase examination of C. Brooke Run, Respondent, through his insurance carrier, paid Damico in full for all alleged damages incurred by Damico as a result of C. Brooke Run "breaking down." Petitioner's expert witness opined that any injury sustained by C. Brooke Run may very well have been sustained after the pre-purchase examination performed by Respondent and that the radiographs taken of C. Brooke Run might or might not have revealed any medical problems or injuries. Respondent cannot locate his notebook where he created his medical record on C. Brooke Run at the time of the pre- purchase examination. Further, by February 10, 2005, he was only able to produce an invoice for services rendered for the radiographs of the horse's knees, hocks, and front ankles, and for the endoscopic examination he performed. After the horse broke down, Damico requested that Respondent provide him with the radiographs Respondent took on C. Brooke Run. Respondent's secretary pulled out from the files the original radiographs and sent them to Damico, who wrote on the envelope that he received 22 radiographs. After showing those original radiographs to his local veterinarian, Damico forwarded them to the University of Florida. After the envelope was returned to Damico from there, he then sent those originals to Respondent's insurance company, assumedly as part of his claim. No evidence was presented as to where the radiographs traveled from there. By the time of the final hearing in this cause, the envelope still contained 22 radiographs. However, two of them were for a different horse than C. Brooke Run, and one of them was too dark to read.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding Respondent not guilty of the allegations in Count One, guilty of the allegations in Count Two of the Administrative Complaint, issuing a reprimand, and imposing an administrative fine of $1,000 to be paid by a date certain. DONE AND ENTERED this 23rd day of January, 2008, in Tallahassee, Leon County, Florida. S LINDA M. RIGOT Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of January, 2008. COPIES FURNISHED: Bradford J. Beilly, Esquire Bradford J. Beilly, P.A. 1144 Southeast Third Avenue Fort Lauderdale, Florida 33316 Drew F. Winters, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Juanita Chastain, Executive Director Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Ned Luczynski, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issues in this cause are fashioned by an amended administrative complaint brought by the Petitioner against the Respondent. By the first count to this complaint, Respondent is charged with knowingly employing and otherwise encouraging his wife, Nadia Said Helmy, to practice veterinary medicine in Florida without the benefit of a license. The second count to the amended administrative complaint was dismissed at the commencement of the hearing. By count three, the Respondent is charged with inappropriate advertising in association with his veterinary practice.
Findings Of Fact The State of Florida, Department of Professional Regulation, Board of Veterinary Medicine (Petitioner) is empowered by Chapters 455 and 474, Florida Statutes, to regulate the practice of veterinary medicine in Florida. Samy H. Helmy, D.V.M (Respondent), is and has been a licensed veterinarian in Florida during the pendency of the allegations set forth in the amended administrative complaint. Respondent's wife, Nadia Said Helmy, is not now licensed to practice veterinary medicine in Florida, nor has she been during the time sequence contemplated by the amended administrative complaint. Respondent and his wife owned and operated Wildwood Animal Clinic in Wildwood, Florida, from a period before January 1985 until June 1985. Respondent and his wife were also the owners and operators of Citrus Fair Animal Hospital in Inverness, Florida, from January 1985 through September 19, 1986, the date upon which Respondent gave a deposition in this cause. During the time frame in which both animal clinics were open, Respondent was principally located at the Inverness facility, while his wife was working in the Wildwood facility. Nadia Helmy was working under the supervision of the Respondent in her activities at Wildwood. Sometime in May 1985, a Ms. Goheen took her cat to Dr. Leigh McBride, another veterinarian licensed to practice in Florida. Ms. Goheen claimed that her cat had been treated by a veterinarian at the Wildwood Animal Clinic. She described that veterinarian as being a female. Dr. McBride was unfamiliar with a female veterinarian at the Wildwood Animal Clinic, being of the understanding that Respondent, a man, was the practicing veterinarian in that facility. This circumstance in which it was possible that someone was practicing veterinary medicine without the benefit of a license led to an investigation of that possibility on the part of Petitioner. Eventually, A. L. Smith, an investigator for Petitioner, was assigned to undertake the investigation. Smith borrowed a cat from Dr. McBride. Stogie, the cat, had come into Dr. McBride's veterinary clinic with a broken shoulder which Dr. McBride had repaired. Following this episode, the cat walked with a slight limp. Around May 22 or 23, 1985, in furtherance of his investigation, Mr. Smith took Stogie to the Wildwood Animal Clinic. He had in mind ascertaining whether Nadia Helmy was practicing veterinary medicine without a license by seeing if she would practice on the cat. He deliberately picked an occasion in which Ms. Helmy was alone in the Wildwood Animal Clinic in his effort to determine her willingness to practice veterinary medicine. Once inside the Wildwood Animal Clinic, Mr. Smith confirmed that Nadia Helmy was the only person in attendance. Smith asked to see a veterinarian, remarking to Ms. Helmy that his cat was suffering lethargy and was limping more than usual and that he needed the cat to be examined by a veterinarian. Ms. Helmy directed Smith to take the cat to an examination room and showed him the location of that examination room. At that point, Smith said that Nadia Helmy commenced "the examination." He further described that while the cat was on the examining table ". . . she [Nadia Helmy] was looking at it and looking into its eyes." He indicated that the examination he was observing was what he would expect a veterinarian to give an animal. On the other hand, this is the first instance in which Mr. Smith had ever done undercover investigation of alleged unauthorized practice of veterinary medicine and there is no other information that has been presented which would lead to the conclusion that Mr. Smith knew what techniques would be employed in an examination conducted by a veterinarian. Under the circumstances, there being no further indication of the factual details of the examination, absent the remark concerning Nadia Helmy's looking into the eyes of the cat, it cannot be concluded what details were involved in the alleged examination process and whether in fact the kind of examination conducted by veterinarians was occurring. The telephone rang, and Nadia Helmy left the examination room and answered the phone. She was gone for. three or four minutes. Mr. Smith could hear Nadia Helmy's end of the conversation, in which she spoke in some foreign language. Nadia Helmy testified in the course of the hearing that she spoke with her husband on the telephone regarding the symptoms of Stogie, among other matters. Having examined her demeanor in the course of the hearing and all her answers provided under interrogation, no credence is afforded her version of the telephone conversation. Consequently, no facts are found as to the nature of that conversation. Nonetheless, it is concluded that a conversation was held between Nadia Helmy and Respondent. Following the telephone conversation, Nadia Helmy returned to the examination room and looked at the cat again. Mr. Smith admitted that the cat seemed to be better and Ms. Helmy agreed with him and stated that the cat was just suffering from extended travel. Nadia Helmy said that the cat would be better after returning home. This was in response to Mr. Smith's representation that he was travelling between Tallahassee and Naples, Florida. Mr. Smith described the remarks by Nadia Helmy, concerning the fact that the cat was suffering from extended travel to be some form of diagnosis. Again, it not being identified that the investigator could speak to matters of what constitutes a diagnosis and the nature of those remarks by Nadia Helmy not being clearly a form of diagnosis which might be recognized by a lay person, the remarks are not received as stating a diagnosis. Throughout the exchange between Mr. Smith and Nadia Helmy on the date that the cat was brought to the Wildwood Animal Clinic, Mr. Smith referred to Nadia Helmy as "doctor." Although Ms. Helmy did not correct Mr. Smith in his reference, she did not affirmatively state that she was in fact a veterinarian licensed by Florida to practice veterinary medicine. In the course of the events in the examination room, Nadia Helmy did not take the temperature of the cat, did not take a case history on the cat or provide any form of treatment. Following the conversation in the examination room, Investigator Smith asked Nadia Helmy "how much" for her service. She replied five dollars. Nadia Helmy gave Investigator Smith a receipt for the payment of the five dollars. A copy of the receipt may be found as Petitioner's Exhibit 1 admitted into evidence. It is on a form of the Wildwood Animal Clinic, which has a portion related to the character of service. This portion of the receipt is not filled out. The only thing that is reflected is the amount of charges and Mr. Smith's name and a date, May 22, 1985. Under these circumstances, it cannot be concluded that the five dollar charge was for provision of veterinary services. After leaving Wildwood Animal Clinic, Investigator Smith went to Citrus Fair Animal Hospital at Inverness. While there, he discussed with Respondent the facts of his visit to the Wildwood Animal Clinic and the nature of events related to Respondent's wife and the fact that the investigation was in answer to allegations made about the wife's practice of veterinary medicine. In the course of this conversation, Respondent stated that his wife was a graduate of veterinary medicine and was qualified to examine animals and run the clinic but that he did all of the surgery. He stated that his wife was qualified to give shots and to determine what was wrong with animals. Concerning the wife's actions, Respondent stated that his wife was too busy raising three children to get all the classes and under this circumstance hadn't passed an examination. Nonetheless, according to Respondent, the wife was completely qualified in that she was a graduate of veterinary medicine school. This acknowledgment by Respondent as to the general arrangement between the Respondent and his wife concerning the operation of the Wildwood Animal Clinic does not revitalize the Petitioner's claim that the wife was practicing veterinary medicine on the specific day in question. Evidence was presented in the course of the hearing concerning the fact that Nadia Helmy would not treat an animal of one Ralph Benfield when the animal had been offered for treatment at the Wildwood Animal Clinic. However, this situation occurred at a time when the Wildwood Animal Clinic was being phased out and it is not clear what significance that fact had in the decision by Nadia Helmy not to offer assistance to the animal. In January 1985, Respondent entered into a one-year advertising contract with the Citrus County Chronicle, a local newspaper. This was for the placement of advertisements pertaining to his Citrus Fair Animal Hospital. One of the ads placed in the paper, at the instigation of the Respondent, can be found as Petitioner's Exhibit 4 admitted into evidence. The date of the advertisement is March 31, 1985. It advertised free fecal check and a free office visit, but did not contain the 72-hour disclaimer language contemplated by Section 455.24, Florida Statutes. Having been advised of this problem related to the lack of disclaimer, Respondent, by correspondence of August 26, 1985, acknowledged his violation and modified the format of his advertising. The letter of August 26, 1985, and the new format of advertising may be found as Petitioner's second exhibit admitted into evidence. This letter had been dispatched based upon a complaint which was filed on August 9, 1985, by a Dr. Asaad. This led to action by the Petitioner attempting to have Respondent rectify the problems with his advertising. Following the circumstance in which Respondent had been made aware of the problem with his advertising, he took steps to ensure that the advertising was in compliance with law by contacting the Citrus County Chronicle. Although the employee of the Citrus County Chronicle who testified in the course of the final hearing was uncertain about whether the March 31, 1985, advertising copy was specifically approved by the Respondent, it was the practice of the newspaper to provide Respondent with a proof prior to publication. Circumstantially, it is concluded that Respondent did not oppose or question the acceptability of the March 31, 1985, advertising. Support for this position is found in the fact that Respondent conceded his violation by his August 25, 1985, correspondence.
The Issue This is a case in which the Petitioner seeks to impose an administrative fine against the Respondent by reason of alleged sanitary violations described in an administrative complaint.
Findings Of Fact At all times material to this case, the Respondent has been licensed as a permanent food service facility, having been issued license number 2318478. The Respondent's last known business address is 9796 S.W. 24th Street, Miami, Florida 33165. On March 17, 2004, the Respondent's licensed premises were inspected by Pedro Ynigo, an inspector employed by the Division of Hotels and Restaurants. During the course of his inspection on March 17, 2004, Inspector Ynigo observed more than thirty fresh mice droppings on the shelves of the second floor storage room. Rodent droppings (including mice droppings) are a critical violation because rodent droppings indicate the presence of vermin and rodents inside the facility which can contaminate the food. The 1999 Food Code, Recommendations of the United States Public Health Service, Food and Drug Administration, have been incorporated into the rules of the Division of Hotels and Restaurants at Florida Administrative Code Chapter 61C. Food Code Rule 6-501.111 requires that steps be taken by the operators of food service establishments to minimize the presence of "insects, rodents, and other pests."
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED that a final order be entered in this case imposing an administrative fine in the amount of five hundred dollars ($500.00). DONE AND ENTERED this 2nd day of February, 2005, in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH 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 2nd day of February, 2005. COPIES FURNISHED: Geoff Luebkemann, Director Division of Hotels and Restaurants Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Leon Biegalski, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Drew Winters, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2201 Ms. Madelaine Galindo Odnilag Incorporated 9796 Southwest 24 Street Miami, Florida 33165
The Issue The issue in this matter is whether Respondent practiced veterinary medicine without a license; and, if so, what disciplinary action is appropriate.
Findings Of Fact The Department is the state agency charged with regulating the practice of veterinary medicine in Florida. See § 20.165(4)(a)13. and ch. 474, Fla. Stat. (2017). The Department brings this action alleging that Respondent engaged in the unlicensed practice of veterinary medicine in violation of section 474.213(1)(i), Florida Statutes (2015).3/ The Department specifically charges that Respondent, who does not hold a license as a veterinarian, used certain procedures to treat several horses, which constituted “veterinary medicine” as the term is defined in section 474.202(9). Respondent owns and operates Peak Performance Equine Dentistry. Respondent is not, nor has she ever been, licensed as a veterinarian in the State of Florida. As part of her “equine dentistry” services, Respondent “floats” horses’ teeth. “Floating” is the term used to describe filing or grinding down horses’ teeth to prevent overgrowth. Unlike humans, horses’ permanent teeth continue to grow throughout their lifetime. (Hence, the origin of the phrase “long in the tooth.”) Because of the manner in which horses chew, their teeth can develop sharp points and edges. Floating is the process of filing down those points to balance out or flatten the teeth. Floating helps horses masticate, as well as prevents tooth problems. Florida law specifically allows non-veterinarians to manually float teeth, i.e., with a hand-held file or rasp. See § 474.203(5)(b), Fla. Stat. However, only licensed veterinarians, or persons immediately supervised by a veterinarian, may float teeth using power tools. See § 474.203(7), Fla. Stat. Floating teeth by hand is a labor- intensive and lengthy process. Using a power tool, on the other hand, allows the practitioner more control over the filing process, as well as reduces the time needed to treat the teeth. On February 15, 2016, Tony King contacted Respondent to schedule an appointment for her to float the teeth of several of his horses. Mr. King learned of Respondent’s services through her advertisement for “equine dentistry” on the internet. On February 24, 2016, Respondent arrived at Mr. King’s barn at approximately 10:00 a.m. Mr. King identified nine horses whose teeth needed to be floated. Seven of the horses belonged to Mr. King. The other two horses were boarding at his barn. (None of the horses were owned by Respondent.) After unloading her equipment, Respondent proceeded to float the teeth of the first horse. She used a hand file and manually ground down the horse’s teeth. After Respondent floated the teeth of the first horse, she moved onto the second horse. Again, Respondent used a file and ground down the horse’s teeth by hand. However, Respondent soon found that the second horse was more difficult to treat. It became quite agitated as she worked on its teeth. Therefore, Mr. King decided to place a “twitch” on the horse’s nose. A “twitch” is a metal clamp that is strapped to the horse’s nose to calm it down and keep it under control. As Respondent continued floating, however, the horse suddenly reared up on its hind legs. When the horse descended, the twitch on its nose struck Mr. King on the left side of his face. Mr. King was knocked to the ground. He instinctively reached up to the wounded area. He felt that his eyeball had popped out of its socket and was resting on his cheek. (The eye was still attached to the optic nerve.) He impulsively shoved his eyeball back into the socket. When Mr. King gathered his wits, he quickly realized that he needed medical attention. He urged Respondent to continue working on the horses. Then, despite his blurred vision in one eye, he drove himself to a nearby surgery center where his wife was working. At the center, an eye doctor examined Mr. King and determined that his eye and vision issues would satisfactorily resolve themselves without treatment. (Mr. King did receive several stitches for a small cut under his left eye.) After his examination, Mr. King drove back to the barn returning approximately three hours later. At the barn, Mr. King was unsettled by what he found. According to his (one) eye witness testimony, Respondent was still working on the horses. However, in his absence, Mr. King believed that Respondent had 1) used a power tool to float the teeth of several horses, 2) administered a sedative to up to five horses, and 3) was preparing to pull “wolf” teeth from several horses. The Use of a Power Tool Regarding the use of a power tool, Mr. King testified that after Respondent arrived at his barn, she unloaded several pieces of equipment from her car. In this equipment, Mr. King observed power tools and a sedation bag. Upon returning to the barn after his trip to the eye center, Mr. King witnessed Respondent use an electric power tool to float the teeth of his horse, Warrior. Mr. King described the tool as having a motor and a head that Respondent applied to the horse’s mouth. He also saw that the tool was plugged into a power outlet in the barn. Sedation Floating teeth, especially with a power tool, often includes sedating the horse. Sedation makes the horse more docile and reduces the risk of harm during the treatment. Under Florida law, administering medication and drugs is considered the practice of veterinary medicine. See § 474.202(9), Fla. Stat. An unlicensed person may sedate a horse only if they are under the immediate supervision of a licensed veterinarian. See § 474.203(7), Fla. Stat. Mr. King testified that when he returned to the barn from the eye center, Warrior appeared to be heavily sedated. The horse was having difficulty keeping his head up on the rest. His ears were flat, and his nose hung down almost to the ground. Mr. King further noticed that at least four other horses showed signs of sedation in that they could not hold their heads up either. Mr. King also observed several plastic tubes or plungers on the ground which he believed were used to administer a gel- type sedative to the horses. Finally, Mr. King testified that Respondent, in fact, told him that she had sedated the horses. Mr. King further attested that he directly witnessed Respondent administer a sedative to a paint mare. Mr. King remarked that he saw Respondent holding a small syringe with a needle. He then watched her poke the paint mare several times with the needle, searching for a vein, before she injected the drug. Mr. King also relayed that Respondent commented that her needles were too small, as her mother had purchased the wrong size. Removing “Wolf” Teeth A horse’s “wolf” teeth are deciduous premolars. (They are similar to human wisdom teeth.) Wolf teeth often interfere with the fit of a bit in a horse’s mouth. Therefore, wolf teeth are frequently removed. Extracting wolf teeth, however, is not considered part of floating a horse’s teeth. Instead, removing wolf teeth is a surgical procedure due to the fact that pulling teeth typically requires sedation, as well as the use of certain medical equipment. As such, removing wolf teeth cannot be performed by an unlicensed person, unless such person is under the immediate supervision of a veterinarian. See §§ 474.202(13) and 474.203(7), Fla. Stat. Regarding Respondent’s removal of “wolf” teeth, Mr. King testified that after he observed the gel tubes and the syringe, Respondent informed him that several horses needed their wolf teeth extracted. Mr. King watched as Respondent pulled the wolf teeth from three horses, including Warrior, Scout, and the paint mare. Mr. King expressed that Respondent appeared to have difficulty removing the wolf tooth from the paint mare, as it took a long time. Within days after Respondent’s visit to his barn, Mr. King noticed that several horses were having trouble chewing. Upon inspecting his horses, Mr. King found at least one tooth that still had a point, and other teeth that were rounded, instead of filed flat. Shortly thereafter, Mr. King sought the care of a veterinarian to fix the problems. Soon afterwards, Mr. King complained to the Department about Respondent’s equine dentistry services. Based on Mr. King’s complaint, the Department charged Respondent with three counts of practicing veterinary medicine without a license, including: floating teeth using a power tool, instead of by hand, in violation of sections 455.227(1)(q), 474.213(1)(i), and 474.202(13), Florida Statutes; pulling “wolf” teeth in violation of sections 455.227(1)(q), 474.213(1)(i), and 474.202(13); and sedating at least one horse in violation of sections 455.227(1)(q), 474.213(1)(i), and 474.202(9. In response to the Department’s allegations, Respondent flatly denied that she used a power tool to float the teeth of Mr. King’s horses. Respondent testified that she floated all of the horses by hand with a file. Respondent also refuted Mr. King’s testimony that she sedated any horses or pulled any wolf teeth. Respondent further denied that she has ever used power tools in her business. Neither has she ever sedated horses or pulled their teeth. Respondent maintained that she floats teeth exclusively by hand and with hand tools. Respondent also disputed key portions of Mr. King’s account. Respondent testified that it was Mr. King who raised the option of sedating his horses. Despite his suggestion, Respondent contended that she refused to do so. Respondent further insinuated that the metal object Mr. King observed in her hand was a tool used to scrap tarter off of a horse’s teeth. Finally, Respondent argued that she finished her floating treatment on all nine horses before Mr. King returned to the barn from the eye center. Therefore, he could not have watched her use a power tool, pull teeth, or sedate horses. Notwithstanding Respondent’s assertions, evidence presented at the final hearing established that Respondent is familiar with, and has received training in, the use of a power tool to float horses’ teeth. In May 2015, Respondent attended an equine dentistry program in Virginia during which time she received training on how to float horse’s teeth using both hand and rotary power tools. Shortly thereafter, she started her equine dentistry business in Florida. Several photographs of Respondent using a power tool on a horse are posted on her business’s Facebook page. Respondent acknowledged that the use of power tools and sedation, as well as the removal of wolf teeth, constitute the practice of veterinary medicine in Florida. Therefore, she could only perform these procedures and techniques under the immediate supervision of a veterinarian. Unrelated to the issue of Respondent’s use of a power tool and sedation, Respondent and Mr. King disputed whether Respondent received full payment for her equine dentistry services. Respondent testified that after she floated the nine horses, she presented Mr. King with invoices for her work. At the final hearing, Respondent produced nine separate Equine Dental Records detailing the amount she charged, as well as the treatment she provided for each horse. Respondent testified that it is her routine practice to complete an Equine Dental Record while she works on a horse and provide a copy to the client. Respondent relayed that her standard charge for floating services is $75 per horse. The Equine Dental Records that she produced record that she billed Mr. King $75 per horse ($675 total) and for no other treatment. Therefore, Respondent asserts that her documents confirm that she only floated the nine horses’ teeth and did not pull wolf teeth or administer sedation. Respondent also stated that Mr. King only had $500 in cash when she presented him with the invoices. Therefore, he told her that he would mail her a check for the remainder. However, when she called Mr. King a week later to follow up on his payment, he refused to pay the rest of the bill. Instead, he demanded that she pay him $500 to cover the medical cost of his eye injury. At the final hearing, Respondent declared that Mr. King filed a false complaint against her in an effort to extort payment from her for his medical expenses. Respondent also pointed out that the amount she charged, as recorded on the Equine Dental Records she prepared, does not match the figure Mr. King recalled he paid her. Therefore, his memory of the event is not credible or reliable. Mr. King remembered that Respondent charged him around $600 for the floating procedure. But, he asserted that she charged him an additional amount for the sedation and the extraction of the wolf teeth. Mr. King stated that he paid Respondent the full amount of her services, in cash, on the date she treated his horses. Mr. King denied that he ever received or saw the Equine Dental Records Respondent produced at the final hearing. Mr. King disputed Respondent’s claim that she supplied him with a written bill, invoice, or receipt of any kind for her floating services. Mr. King further denied that he demanded Respondent pay for his medical expenses. He represented that he owed nothing for his hospital visit because his wife worked at the facility. The Department introduced the testimony of Patricia Austin in rebuttal.4/ Ms. Austin testified regarding a similar floating service she received from Respondent on her horse. Ms. Austin was acquainted with Respondent from boarding her horse at a barn where Respondent took lessons and occasionally cared for horses. Ms. Austin testified that in May 2016, she hired Respondent to float the teeth of her horse, Sapphire. During the procedure, Ms. Austin observed Respondent use a power tool to file down Sapphire’s teeth. Ms. Austin described the power tool as a long metal device with a grinder on the end. The tool was equipped with a power cord and was plugged in during the treatment. Ms. Austin also witnessed Respondent sedate her horse. Ms. Austin watched as Respondent injected Sapphire with a needle. Following the injection, Ms. Austin relayed that Sapphire’s head and ears began to droop, and she appeared sleepy. Ms. Austin paid Respondent for her services in cash, half at the time of treatment and the other half two weeks later. Respondent did not provide Ms. Austin with an invoice or receipt. Neither did Ms. Austin receive an Equine Dental Record from Respondent documenting her work on Sapphire. Respondent denied that she ever floated the teeth of Sapphire or any other horse for Ms. Austin. Instead, Respondent asserts that she simply looked at Sapphire’s teeth and determined that the horse did not need dental care. The Department incurred $288.47 in investigative costs associated with this matter. Based on the competent substantial evidence produced at the final hearing, the clear and convincing evidence in the record establishes that Respondent engaged in the practice of veterinary medicine without a license. Accordingly, the Department met its burden of proving that Respondent should be disciplined for her unlicensed conduct.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation enter a final order finding that Respondent, Megan McMurran Lajara, violated section 474.213(1)(i) and impose an administrative fine in the amount of $9,000 ($3,000 for each separate violation), as well as assess costs in the amount of $288.47. DONE AND ENTERED this 31st day of January, 2018, in Tallahassee, Leon County, Florida. S J. BRUCE CULPEPPER 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 31st day of January, 2018.
The Issue The Petitioner has accused the Respondent, Vaz Rolando Street, with a violation of Rule 7E-1.06(11)(a), Florida Administrative Code which reads: a) The ruining 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 punish- ment and take such other action as they may deem proper under any of the rules, including reference to the Division, against every person found by them to have administered, or to have attempted to administer, or to have caused to be administered, or to have caused an attempt to administer, or to have conspired with another person to administer, such narcotic, stimulant, depressant or local anesthetic. If the Division laboratory shall find a positive identification of any such medication, such finding shall constitute prima facie evidence that such horse raced with the medication in its system. Under the accusation, the Respondent is made responsible pursuant to the provisions of Rule 7E-1.18(3), Florida Administrative Code, which indicates that, "The trainer shall he responsible for, and be the insurer of the conditions of the horses he enters. Trainers are presumed to know the rules of the Division." Specifically, Respondent Street is accused under facts that allege that on November 15, 1978, the horse, Turn To Chance, trained by the Respondent, did race in the sixth race at Tropical Park, Inc., finishing in the first position. Subsequent to the race, and on the same date, a urine specimen was taken from the horse, Turn To Chance, and assigned sample number S90559A and the specimen was allegedly analyzed by the Petitioner's laboratory. It is further alleged that on February 13, 1979, the Division of Pari-Mutuel Wagering laboratory reported the results of the test. That report showed that the urine sample contained Despropionyl Fentanyl, a narcotic.
Findings Of Fact This cause comes on for consideration based upon a Notice to Show Cause (Administrative Complaint) filed by the Petitioner, State of Florida, Department of Business Regulation, Division of Pari-Mutuel Wagering, against Vaz Rolando Street. At all times pertinent to the Administrative Complaint, Vaz Rolando Street was the holder of license No. K-2282 issued by the Petitioner to the Respondent, Vaz Rolando Street, to operate as a horse trainer (authorized agent) for horses racing at the various race tracks located in the State of Florida. The Petitioner, State of Florida, Department of Business Regulation, Division of Pari-Mutuel Wagering, is an agent of the State of Florida charged with the duty of the regulation of, among other things, the matters pertaining to thoroughbred horse racing in the State of Florida. The authority for such regulation is found in Chapter 550, Florida Statutes, and those rules promulgated to enforce the provisions of that chapter. Included in the body are Rules 7E-1.06(11)(a) and 7E-1.18(3), Florida Administrative Code, alluded to in the issue statement of this Recommended Order. Those rules as set out in the issue statement shall serve as a basis for determining the facts and reaching the legal conclusions necessary to formulate a decision in this matter and official recognition is taken of the aforementioned rules. The facts in this case show that the Respondent, Vaz Rolando Street, was operating in his capacity as horse trainer, on November 15, 1978, at Tropical Park, Inc., located in the State of Florida. On that date, a horse for which he was the trainer, namely, Turn To Chance, ran in the sixth race and finished in first place. The post time for that race was 3:21 p.m. and subsequent to the race, the horse was taken to the detention barn at 3:38 p.m. for purposes of obtaining a urine sample. This sample was assigned specimen number S09559A. Subsequently, the sample was subjected to a series of analytical tests and the tests revealed that the urine sample contained Despropionyl Fentanyl, which is classified as a derivative of Fentanyl, a narcotic. The narcotic, Fentanyl, metabolizes to become the substance, Despropionyl Fentanyl, a central nervous system stimulant in horses. The trade name of Fentanyl is Sublimaze. The circumstances of the race event and the subsequent testing, show that the horse, Turn To Chance, was running under the influence of Despropionyl Fentanyl when he raced in the sixth race at Tropical Park, Inc., on November 15, 1978, and finished in first position. During the course of the hearing, no testimony was given concerning the Respondent, knowledge of the fact that his horse, Turn to Chance, was competing while under the influence of Despropionyl Fentanyl.
Recommendation It is recommended that Respondent, Vaz Rolando Street, have his license, No. K-2282, suspended for a period of one (1) year in view of the violations established through this Notice to Show Cause. DONE AND ENTERED this 28th 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 and Greer, P.A. One Biscayne Tower, 25th Floor Miami, Florida 33131 David M. Maloney, Esquire Staff Attorney Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Mr. Vaz Rolando Street 261 Hibiscus Drive Apartment No. 6 Miami Springs, Florida 33166
The Issue Whether Florida Administrative Code Rules 61D-6.007 and/or 61D-6.012 constitute an invalid exercise of delegated legislative authority.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing and the entire record in this proceeding, the following Findings of Fact are made: Petitioners, Charles L. McClellan and Natasha Nemeth, hold suspended Pari-Mutuel Wagering Individual Occupational Licenses that authorize them to train racing greyhounds. As licensees, Petitioners are subject to the provisions of chapter 550, Florida Statutes, and the rules promulgated thereunder, specifically chapter 61D-6. The Division is a state agency delegated the responsibility for the implementation and enforcement of Florida’s pari-mutuel laws under chapter 550, including the licensing and regulation of all pari-mutuel activities in the state. As licensees subject to disciplinary action by the Division, Petitioners have standing to bring this action. Section 550.2415(1)(a), Florida Statutes, prohibits the racing of an animal that has been impermissibly medicated or determined to have a prohibited substance in its system. To enforce section 550.2415, Division employees collect urine samples from racing greyhounds at the track prior to the greyhounds’ race. Fla. Admin. Code R. 61D-6.005(2). These samples are secured and shipped to the University of Florida Racing Laboratory (“UF Lab”) to be tested for impermissible substances. The Division and the UF Lab have entered into a contract pursuant to which the UF Lab conducts the drug testing analysis for all of the urine samples collected from racing animals at pari-mutuel tracks in Florida. At all relevant times, each of the Petitioners was working as the trainer of record for racing greyhounds in the Jacksonville area. The Division collected urine samples from Petitioners’ greyhounds and sent them to the UF Lab for testing. The UF Lab tested the urine samples and reported a total of 24 drug positives for benzoylecgonine (“BZE”) and/or ecgonine methyl ester (“EME”), both of which are metabolites of cocaine. Margaret Wilding, associate director of the UF Lab, testified that the lab currently reports as “positive” any reading for cocaine metabolites at or above 10 nanograms per milliliter (“ng/mL”), the UF Lab’s current limit of quantification. The Division filed Administrative Complaints against Petitioners alleging that they were the trainers of record for racing greyhounds whose urine was collected, tested, and found to contain BZE and/or EME. The proposed penalty would be imposed pursuant to rule 61D-6.012. Those complaints were referred to DOAH and are being held in abeyance pending the outcome of this proceeding.1/ Section 550.2415(1) provides, in relevant part: The racing of an animal that has been impermissibly medicated or determined to have a prohibited substance present is prohibited. It is a violation of this section for a person to impermissibly medicate an animal or for an animal to have a prohibited substance present resulting in a positive test for such medications or substances based on samples taken from the animal before or immediately after the racing of that animal. . . . It is a violation of this section for a race-day specimen to contain a level of a naturally occurring substance which exceeds normal physiological concentrations. The division may solicit input from the Department of Agriculture and Consumer Services and adopt rules that specify normal physiological concentrations of naturally occurring substances in the natural untreated animal and rules that specify acceptable levels of environmental contaminants and trace levels of substances in test samples. The finding of a prohibited substance in a race-day specimen constitutes prima facie evidence that the substance was administered and was carried in the body of the animal while participating in the race. Section 550.2415(2) provides that the Division may take administrative action against an occupational licensee “responsible pursuant to rule of the division for the condition of an animal that has been impermissibly medicated or drugged in violation of this section.” Rule 61D-6.002(1) provides that the trainer of record “shall be responsible for and be the absolute insurer of the condition of the . . . racing greyhounds” that he or she enters in a race.2/ Section 550.2415(7) provides as follows: (7)(a) In order to protect the safety and welfare of racing animals and the integrity of the races in which the animals participate, the division shall adopt rules establishing the conditions of use and maximum concentrations of medications, drugs, and naturally occurring substances identified in the Controlled Therapeutic Medication Schedule, Version 2.1, revised April 17, 2014, adopted by the Association of Racing Commissioners International, Inc. [referenced herein as the ARCI Medication Schedule].[3/] Controlled therapeutic medications include only the specific medications and concentrations allowed in biological samples which have been approved by the Association of Racing Commissioners International, Inc., as controlled therapeutic medications. The division rules must designate the appropriate biological specimens by which the administration of medications, drugs, and naturally occurring substances is monitored and must determine the testing methodologies, including measurement uncertainties, for screening such specimens to confirm the presence of medications, drugs, and naturally occurring substances. The division rules must include a classification system for drugs and substances and a corresponding penalty schedule for violations which incorporates the Uniform Classification Guidelines for Foreign Substances, Version 8.0, revised December 2014, by the Association of Racing Commissioners International, Inc. [referenced herein as the ARCI Guidelines].[4/] The division shall adopt laboratory screening limits approved by the Association of Racing Commissioners International, Inc., for drugs and medications that are not included as controlled therapeutic medications, the presence of which in a sample may result in a violation of this section. The division rules must include conditions for the use of furosemide to treat exercise-induced pulmonary hemorrhage. The division may solicit input from the Department of Agriculture and Consumer Services in adopting the rules required under this subsection. Such rules must be adopted before January 1, 2016. This section does not prohibit the use of vitamins, minerals, or naturally occurring substances so long as none exceeds the normal physiological concentration in a race-day specimen. Section 550.2415 does not define “medication,” “impermissibly medicated,” “prohibited substance,” “drug,” “naturally occurring substance,” “environmental contaminant,” or “laboratory screening limits,” except by reference to publications issued by the Association of Racing Commissioners International, Inc. (“ARCI”). ARCI is the umbrella organization of the official governing bodies for professional horse and greyhound racing in the United States. ARCI sets standards for racing regulation, medication policy, drug testing laboratories, and other matters pertaining to racing for participating jurisdictions. The ARCI “Uniform Classification Guidelines for Foreign Substances and Recommended Penalties and Model Rule” (“ARCI Guidelines”) are intended to assist stewards, hearing officers, and racing commissioners in evaluating the seriousness of alleged violations of medication and prohibited substance rules in racing jurisdictions. The ARCI Guidelines employ a “Drug Classification Scheme” based on pharmacology, drug use patterns, and the appropriateness of a drug for use in the racing animal.5/ Drugs that are known to be potent stimulants or depressants are placed in higher classes, while those that have (or would be expected to have) little effect on the outcome of a race are placed in lower classes. Drugs that are clearly not intended for use in racing animals are placed in higher classes, particularly if they may affect the outcome of a race. The ARCI Guidelines do not set screening limits or testing thresholds for any of the listed substances. The ARCI Guidelines classify cocaine and/or its metabolites as “Class 1 drugs” which are defined as: [S]timulant and depressant drugs that have the highest potential to affect performance and that have no generally accepted medical use in the racing horse. Many of these agents are Drug Enforcement Agency (DEA) schedule II substances. These include the following drugs and their metabolites: Opiates, opium derivatives, synthetic opioids, and psychoactive drugs, amphetamines and amphetamine-like drugs as well as related drugs. . . . The ARCI Guidelines state that Class 1 drugs “have no generally accepted medical use in the racing horse and their pharmacologic potential for altering the performance of a racing horse is very high.” Rule 61D-6.007, titled “Permitted Medications for Racing Greyhounds,” provides as follows: The following medications are permitted to be administered to racing greyhounds in the dosages and under the conditions listed below: The administration of testosterone or testosterone-like substances, when used for the control of estrus in female racing greyhounds, is permitted, subject to the following conditions: Track veterinarians may administer injectable testosterone on the grounds of the permitholder to female racing greyhounds for the control of estrus. Kennel owners may use their regular Florida licensed veterinarian or may enter into a collective agreement for the services of a Florida licensed veterinarian to administer injectable testosterone to female racing greyhounds for the control of estrus. The administration of oral testosterone shall be permitted provided it is validly prescribed and properly labeled. Veterinarians that administer injectable or oral testosterone shall be responsible for maintaining security, inventory, and a retrievable records/log in accordance with the Drug Enforcement Agency (DEA) regulations pertaining to a Schedule III drug under the federal Controlled Substances Act and shall be accountable for all syringes and needles used therewith and their disposal in accordance with approved biomedical hazardous waste methods. Sulfa drug(s) is/are permitted to be administered to a racing greyhound providing: The racing greyhound is under the care of a veterinarian currently licensed pursuant to Chapters 474 and 550, Florida Statutes; and The sulfa drug(s) is/are prescribed by a veterinarian currently licensed pursuant to Chapters 474 and 550, Florida Statutes; and The sulfa drug(s) is/are not administered within 24 hours prior to the officially scheduled post time of the race. The following permitted medications shall not be reported by the racing laboratory to the division as a violation of Section 550.2415, F.S.: The detection of caffeine at a urinary concentration less than or equal to 200 nanograms per milliliter; The detection of theophylline and theobromine at a urinary concentration less than or equal to 400 nanograms per milliliter; The detection of procaine at a urinary concentration less than or equal to 2 micrograms per milliliter; and The detection of flunixin at a urinary concentration less than or equal to 250 nanograms per milliliter. All prescription medication, regardless of method of administration, shall be safeguarded under lock and key when not being actively administered. Rule 61D-6.012, titled “Penalty Guidelines for Class I-V Drug Violations in Greyhounds,” provides as follows: The penalties in this rule shall be imposed when the Division finds that the following substances have been identified by the state laboratory in a urine sample or blood sample collected from a greyhound participating in a pari-mutuel event: (a) Any drug or medication that: Is not approved for veterinary use in the United States by the Food and Drug Administration; Cannot be detected by the state laboratory in a urine or blood sample unless the medication was administered within 24 hours of the race; or Is detected in urine or blood concentrations that indicate a level of dosage that would constitute a threat to the health and safety of the greyhound. First violation of this chapter Any subsequent violation of this chapter $1,000 to $2,500 fine and suspension of license zero to one year, or revocation of license; $2,500 to $5,000 fine and revocation of license. The penalty for any medication or drug which is not described in subsection (1) above shall be based upon the classification of the medication or drug found in the Uniform Classification Guidelines for Foreign Substances, revised December 2014, as promulgated by the Association of Racing Commissioners International, Inc., which is hereby incorporated and adopted by reference, https://www.flrules.org/Gateway/ reference.asp?No=Ref-06400. A copy of this document may be obtained at www.myfloridalicense.com/dbpr/pmw or by contacting the Department of Business and Professional Regulation, 2601 Blair Stone Road, Tallahassee, Florida 32399. The penalty schedule shall be as follows: Class I substances: First violation of this chapter $500 to $1,000 fine and suspension of license zero to one year, or revocation of license; Any subsequent violation of this chapter $1,000 to $5,000 fine and suspension of license no less than one year, or revocation of license. Class II substances: First violation of this chapter $100 to $1,000 fine and suspension of license zero to 30 days; Second violation of this chapter $250 to $1,000 fine and suspension of license no less than 30 days, or revocation of license; Third violation or any subsequent violation of this chapter $500 to $1,000 fine and suspension of license no less than 60 days, or revocation of license. Class III substances: First violation of this chapter $50 to $500 fine; Second violation of this chapter Third violation or any subsequent violation of this chapter $150 to $750 fine and suspension of license zero to 30 days; $250 to $1,000 fine and suspension of license zero to 60 days. Class IV or V substances: First violation of this chapter $50 to $250 fine; Second violation of this chapter Third or subsequent violation of this chapter $100 to $500 fine; $200 to $1,000 fine and suspension of license zero to 30 days. The Division may consider mitigation or aggravation to deviate from these penalty guidelines. Circumstances which may be considered for the purposes of mitigation or aggravation of any penalty shall include the following: The impact of the offense to the integrity of the pari-mutuel industry. The danger to the public and/or racing animals. The number of repetitions of offenses. The time periods between offenses. The number of complaints filed against the licensee or permitholder, which have resulted in prior discipline. The length of time the licensee or permitholder has practiced. The deterrent effect of the penalty imposed. Any efforts at rehabilitation. Any other mitigating or aggravating circumstances. Absent mitigating circumstances, the division judge or the division shall order the return of any purse, prize, or award from any pari-mutuel event for redistribution when a postive test for a drug or medication described in paragraphs (1)(a), (1)(b), (1)(c), (2)(a), or (2)(b) is reported by the state laboratory and confirmed through the hearing process. The judges or the division shall specify in writing the reasons for requiring the return of any purse, prize, or award for redistribution when the positive test of a drug or medication reported by the state laboratory is not described in paragraphs (1)(a), (1)(b), (1)(c), (2)(a), or (2)(b) of this rule. Nothing in this rule modifies the provisions of Rule 61D-6.008 or 61D-3.002, F.A.C., or rules promulgated under Section 550.2415, F.S. Count II of the Petition alleges that the challenged rules arbitrarily and capriciously fail to address environmental contamination of racing greyhound urine samples. It also alleges that the rules deprive racing greyhound trainers of due process, are vague in that they fail to establish adequate standards for agency decisions, and vest unbridled discretion in the agency. Finally, it alleges that the rules exceed and contravene the Division’s delegated legislative authority. Petitioners point out that section 550.2415(1)(b) acknowledges the presence of “naturally occurring substances” and “environmental contaminants” in an animal. The statute authorizes the Division to adopt rules that specify “normal physiological concentrations” of naturally occurring substances and that specify acceptable levels of environmental contaminants. Petitioners also observe that section 550.2415(7)(c) requires the Division to adopt rules that include a classification system for “drugs and substances” and a corresponding penalty schedule for violations in accordance with the ARCI Guidelines. The Division is also required to adopt ARCI-approved “laboratory screening limits” for drugs and medications that are not classified as controlled therapeutic medications. Petitioners note that, despite the statutory language, rule 61D-6.007 provides screening limits for only a few foreign substances. The rule addresses permitted administrations of testosterone and sulfa drugs to racing greyhounds and provides screening limits for caffeine, theophylline, procaine, and flunixin. Petitioners contend that this list is inconsistent with the ARCI Medication Schedule, which lists 26 medications and their recommended screening limits for the urine samples of racing animals. Petitioners further note that rule 61D-6.012 establishes a penalty schedule that incorporates the ARCI Guidelines without regard to the amount of the substance found in the urine sample. The Division counters that its rule follows the ARCI Guidelines, which do not contain laboratory screening limits (or thresholds) for cocaine, BZE, or EME. Cocaine, BZE, and EME are also not identified within the ARCI Medication Schedule. The Division reads the exclusions of laboratory screening limits for cocaine as evidencing ARCI’s “zero tolerance policy” for the presence of cocaine and its metabolites in the race-day sample of a racing animal. Rule 61D-6.012 incorporates the ARCI Guidelines and therefore the same “zero tolerance policy” for the presence of cocaine, BZE, and EME that the Division presumes, both the ARCI Guidelines and ARCI Medication Schedule recommend. However, the only laboratory screening limits found in any of the ARCI materials are those related to the 26 “controlled therapeutic medications” listed in the ARCI Medication Schedule. The ARCI Guidelines list approximately 750 “drugs/substances” and contain screening limits for none of them. Thus, the Division’s point about “zero tolerance” for cocaine based on the ARCI documents could be made as to several hundred other drugs/substances, including several items for which the Division’s own rule 6D-6.007(3) establishes screening limits well above zero.6/ The ARCI Schedule recommends that cocaine, almost alone among Class 1 drugs,7/ be given a “Class B” penalty rather than the typical “Class A” penalty. The ARCI-recommended Class B penalty for a licensed trainer’s first offense is a minimum 15-day suspension and $500 fine, absent mitigating circumstances. The presence of aggravating factors can increase the penalty to a 60-day suspension and a fine of $1,000. In contrast, the ARCI-recommended Class A penalty for a first offense is a minimum one-year suspension and minimum fine of $10,000. Aggravating factors can increase the Class A penalty to a three-year suspension and a fine of $25,000. The lesser recommended penalty indicates that if ARCI has singled out cocaine, it has been for more lenient treatment, and not for harsher treatment than for other Class 1 drugs. Dr. Cynthia Cole is a veterinarian and pharmacologist, who acted as the director of the UF Lab from 2003 to 2006. Dr. Cole testified that BZE and EME are “naturally occurring substances,” in the strict sense that they are metabolites of cocaine and would be naturally produced by any animal that has ingested cocaine. Dr. Cole also conceded that levels of cocaine below 100 (ng/mL) would be very unlikely to have any effect on a racing animal’s performance, and that such low levels could be the result of environmental contamination. Of the 24 positive tests cited against Petitioners, the highest concentration of a cocaine metabolite was 36.5 ng/mL. Even that appeared to be an outlier, as most of the concentrations were in the range of 10 to 15 ng/mL. Dr. Thomas Tobin, a veterinarian, pharmacologist, and toxicologist, testified that trace amounts of cocaine are present virtually everywhere in North American human society. Dr. Tobin stated that less than 50 ng/mL of urinary BZE is indicative of nothing more than that the subject lives in North America. Dr. Tobin testified that a very small concentration of cocaine metabolites in the urine is likely attributable to environmental contamination. Dr. Tobin stated that when the concentration is below pharmacological significance, it should not be called a positive. He noted that in human drug testing, a sample is first screened at 150 ng/mL and then confirmed at 100 ng/mL, at which point it is reported as positive. Dr. Tobin could think of no scientific reason why there should be a regulatory reporting threshold for humans but not for racing animals. Cocaine is rapidly absorbed and metabolized, and may enter a dog’s body through the mouth, the mucous membranes, or through the skin. Dr. Tobin opined that the very small concentrations of cocaine metabolites found in Petitioners’ greyhounds suggest exposure to the drug via touch, soon before the urine sample was taken. He found this significant because of the manner in which urine is collected from racing greyhounds in Florida. Shortly before the first race begins for each 15-race card, greyhound trainers customarily arrive at the track detention facility with their greyhounds for weigh-in. The trainers then leave their greyhounds in the care of track personnel. Between weigh-in and the end of a greyhound's race, the dog has no physical contact with its trainer, while it has extensive contact with track personnel. After weigh-in, and approximately 30 minutes before the first race begins, track personnel identified as "lead- outs," take the greyhounds into a locked area called a "ginny pit." Track personnel supervise the dogs in this area; trainers and owners are not allowed to be present. The urine sampling of a racing greyhound takes place just prior to the greyhound's scheduled race. Depending on when a greyhound is scheduled to race, its urine may be sampled several hours after its last contact with its trainer. Veterinarian assistants employed by the Division catch racing greyhounds' urine during the sampling process. The Division does not drug-test its veterinarian assistants. David Tiffany is the quality assurance manager for the UF Lab. Mr. Tiffany testified in agreement with Ms. Wilding that the UF Lab’s current limit of quantification for cocaine, also called a “decision limit” or “cut-off,” is 10 ng/mL. Mr. Tiffany uses the term “cut-off” to describe the detection level at which the lab has informally decided not to expend the effort required to establish the quantity of a substance at a lower level. Mr. Tiffany stated that the UF Lab is able to detect cocaine down to 5 ng/mL, and that this “limit of detection”--the smallest concentration of a substance that can be confidently identified by a testing methodology--is one factor in determining the limit of quantification. He testified that several factors influence the ability to confidently see a drug all the way down to its limit of detection, including “noise” (other compounds) in the sample, and whether the testing instrument is in need of service and recalibration. Mr. Tiffany wrote the UF Lab’s procedures for determining measurement uncertainty. He explained that multiple measurements of an item yield small variations. The degree of that variation is the “precision of measurement.” The lab looks at various factors that affect the variation and sets a range of measurement uncertainty, i.e., the probability that the measurement for a certain substance will fall between an upper and a lower limit. Mr. Tiffany stated that the common level of a range is a 95-percent probability that the value of the sample is within the range. The standard format is to state the concentration of the substance, plus or minus the value of the range of measurement uncertainty. Mr. Tiffany testified that the UF Lab calculates and attaches to its report a measurement of uncertainty only when dealing with a “threshold drug,” meaning a drug for which a statute or rule sets an allowable level. For such drugs, the lab must be certain that the entire range of variation sits above the threshold. If the value of the measurement minus the measurement of uncertainty still exceeds the threshold, the lab calls it a positive finding. The UF Lab does not report a measurement of uncertainty for cocaine and its metabolites because no rule or statute sets a threshold for cocaine. Mr. Tiffany stated that a measurement of uncertainty is not needed to detect the mere presence of a substance, as opposed to making a precise measurement of the quantity of that substance. The lab can determine that something is present without giving it a number. Mr. Tiffany testified that the UF Lab used to simply report the qualitative results of its tests for cocaine, but that the Division then would ask whether there was a lot or a little cocaine in the sample. As an aid to the Division, the lab began reporting quantitative results for cocaine, with the proviso that the reported amounts were estimates. At some point, the lab began restricting its “positive” reports for cocaine metabolites to those results that met or exceeded the lab’s limit of quantification, 10 ng/mL. Ms. Wilding and Mr. Tiffany resisted calling this 10 ng/mL line a “threshold” because a “threshold” is an allowable level of a substance established by statute or rule. However, as a practical matter, the Division has allowed the limit of quantification for cocaine metabolites to act as a threshold for taking action against a licensee. If the Division’s policy were actually “zero tolerance,” it would require the UF Lab to report cocaine down to its limit of detection and would discipline licensees accordingly. In either event, the laboratory screening limit should be reflected in the Division’s rules, as required by section 550.2415(7)(c). It was never explained at the hearing how the UF Lab knows which drugs are “threshold” drugs for purposes of reporting positive results to the Division. The Division’s annual report includes a listing of positive drug tests for the previous fiscal year. Apart from cocaine and its metabolites, the drugs found in the positive drug tests for fiscal years 2014-2015 and 2015-2016 were: acepromazine metabolite; methylprednisolone; amphetamine; betamethasone; caffeine; theophylline; theobromine; clenbuterol; dexamethasone; methocarbamol; phenylbutazone; 5-hydroxy dantrolene; despropionyl fentanyl; xylazine; dextrorphan; dimethyl sulfoxide; firocoxib; flunixin; ketoprofen; glycopyrrolate; ibuprofen; isoflupredone; methylprednisolone; triamcinolone acetonide; ketoprofen; lidocaine; 3-hydroxy lidocaine; mepivacaine; 3-hydroxy mepivacaine; omeprazole sulfide; oxycodone; oxymorphone; procaine; testosterone; nandrolone; boldenone; carprofen; isoxsuprine; naproxen; and zipaterol. Apart from caffeine, theophylline, theobromine, procaine, and flunixin, the Division’s rules (and the record of this proceeding) are silent as to the laboratory screening limits for these drugs. There appear to be three possibilities: the Division informally provided the UF Lab with a screening limit for these drugs; the Division instructed the UF Lab to report positive tests down to the limit of detection, i.e., “zero tolerance,” for these drugs; or the UF Lab was allowed to set its own “screening limit” by way of its limit of quantification, as Mr. Tiffany testified has been done for cocaine. However, the Division offered no evidence in support of any of the possibilities. Mr. Tiffany testified that measurements of uncertainty vary between labs and can change within a single lab upon review of the methodologies and current equipment. Mr. Tiffany testified that there is no technical reason why the UF Lab could not report measurement uncertainties for BZE and EME if the Division requested that information. He believed that adopting the current UF Lab’s measurement of uncertainty in a Division rule would become a “false restriction on the data,” as it would become a limitation on the lab’s ability to lower the uncertainty measurement with new equipment and techniques.8/ Several jurisdictions have established screening limits for BZE in racehorses. New Mexico, Ohio, Illinois, and Oklahoma prohibit disciplinary action unless the test sample results exceed 150 ng/mL. The state of Washington has set the screening limit at 50 ng/mL. Illinois and Oklahoma refer to BZE under the heading “environmental contaminants.” New Mexico references BZE under the heading “environmental contaminants and substances of human use.” Washington lists BZE under the heading “environmental substances.” Petitioners contend that the Division has effectively delegated to the UF Lab the setting of a threshold or screening limit for cocaine and its metabolites. The UF Lab’s limit of quantification operates as the screening limit for disciplinary action taken by the Division, and is subject to change whenever the lab alters its equipment or methods. In support of their contention, Petitioners point out that in 2014, the UF Lab employed a more sensitive testing technology than it currently uses, which resulted in the prosecution of a greyhound trainer whose dog’s urine yielded only 3.7 ng/mL of BZE. Petitioners argue that this 2014 case demonstrates that the lab’s limit of quantification serves as a de facto substitute for the screening limits that section 550.2415(7)(c) requires the Division to adopt by rule.9/ The evidence fully supports Petitioners’ argument on this point. In summary, section 550.2415(7) places several mandatory rulemaking requirements on the Division. Paragraph (a) expressly directs the Division to adopt rules establishing the conditions of use and maximum concentrations of “medications, drugs, and naturally occurring substances” identified in the ARCI Medication Schedule, to ensure “the safety and welfare of racing animals.” “Controlled therapeutic medications” are limited to those medications and allowable concentrations as identified and approved by ARCI. The Division has not implemented this directive as to greyhounds. Rule 61D-6.007(3) prescribes allowable dosages for caffeine, theophylline, theobromine, procaine, and flunixin, of which only flunixin is listed in the ARCI Medication Schedule. The ARCI Medication Schedule lists dosage thresholds, withdrawal guidelines and dosing specifications for 26 “controlled therapeutic medications.” The ARCI Guidelines include caffeine (Drug Class 2, Penalty Class B), theophylline (Drug Class 3, Penalty Class B), theobromine (Drug Class 4, Penalty Class B), and procaine (Drug Class 3, Penalty Class B).10/ In its Proposed Final Order, the Division argues, for the first time, that the ARCI Medication Schedule does not apply to greyhounds at all. It concedes that section 550.2415(7)(a) mandates the adoption of rules establishing thresholds for medications, drugs, and naturally occurring substances identified in the ARCI Medication Schedule, but argues that this provision applies only to racehorses. The Division has adopted rule 61D-6.008, applying the ARCI Medication Schedule to horses, but has not done so for greyhounds.11/ The Division’s assertion is not supported by the statute. In fact, section 550.2415(7)(a) is not limited to horses but expressly states that it applies to “racing animals.” The only textual support of any kind the Division offers is the assertion that the full title of the ARCI Medication Schedule is “ARCI Controlled Therapeutic Medication Schedule for Horses-- Version 2.1.” The copy of the ARCI Medication Schedule entered into evidence in this proceeding does not contain the words “for Horses,” or any language excluding greyhounds. Even if the ARCI Medication Schedule were limited to horses, the same point could be made as to the ARCI Guidelines, the classification definitions of which describe the impact of the listed drugs on “the racing horse.” The Division makes much of the fact that the word “greyhound” does not even appear in the ARCI Medication Schedule; neither does the word occur in the ARCI Guidelines. The record evidence in no way supports the Division’s contention that the statute’s provisions as to the ARCI Medication Schedule are inapplicable to greyhounds. Section 550.2415(7)(b) expressly directs the Division to adopt rules that designate the appropriate biological specimens for testing and that “determine the testing methodologies, including measurement uncertainties, for screening such specimens” for medications, drugs, and naturally occurring substances. (emphasis added). The Division has not implemented this directive. As set forth in the above Findings of Fact, the Division has left it to the UF Lab to establish measurement uncertainties. The UF Lab determines measurement uncertainties only for threshold substances, and these measurement uncertainties change over time. While the Division offered a cogent and reasonable explanation as to why it makes sense for the UF Lab to set measurement uncertainties, the statute does not give the Division discretion to entirely delegate this responsibility to another entity. The Division’s rules must determine the testing methodologies, including measurement uncertainties, not hand off that determination to a laboratory. The Division’s rules must make this determination for all “medications, drugs, and naturally occurring substances” that are screened by the lab, not only those substances it and/or the UF Lab deem “threshold” substances.12/ Section 550.2415(7)(c) expressly directs the Division to adopt rules that include a classification system for “drugs and substances” and a corresponding penalty schedule for violations. The classification system and penalty schedules must incorporate the ARCI Guidelines. The Division has implemented this requirement in rule 61D-6.012(2), which expressly adopts the classifications of the ARCI Guidelines and sets forth penalties based on the ARCI classifications. However, section 550.2415(7)(c) also expressly directs the Division to adopt rules that include laboratory screening limits approved by ARCI for drugs and medications that are not included in ARCI’s Medication Schedule as “controlled therapeutic medications.” The statute states that the presence of such drugs and medications in a sample “may result in a violation of this section.” The Division has not implemented this requirement. The ARCI Guidelines do not approve laboratory screening limits for drugs and medications other than “controlled therapeutic medications.” The Division has argued that the lack of screening limits for cocaine and its metabolites is evidence that ARCI supports a “zero tolerance” policy for cocaine. However, the same argument would apply to any of several hundred substances listed in the ARCI Guidelines that are not also listed as “controlled therapeutic medications” in the ARCI Medication Schedule. The Division has offered no principled distinction between cocaine and, for example, caffeine. Caffeine also appears in the ARCI Guidelines, with the same recommended penalty as cocaine. The ARCI Guidelines prescribe no screening limit for caffeine. Caffeine is not a controlled therapeutic medication. By the Division’s stated rationale, caffeine should be a “zero tolerance” substance. However, rule 61D-6.007(3)(a) allows up to 200 ng/mL of caffeine in the urine before the lab must report the finding to the Division. It could be objected that caffeine is merely a Class 2 drug, unlike cocaine, which is Class 1 and has no generally accepted medical use in racing animals. However, rule 61D- 6.012(2) provides penalties for substances all the way down to Class 5. If there were a “zero tolerance” policy for caffeine, a prosecution for a Class 2 substance violation could result in a $1,000 fine and a 30-day suspension. Fla. Admin. Code R. 61D- 6.012(2)(b). The point remains that neither the Division’s rule nor the Division’s arguments at hearing articulate a principled distinction as to which substances the Division will, in practice,13/ treat with a “zero tolerance” policy. The literal terms of the laboratory screening limits portion of section 550.2415(7)(c) require the Division to obtain ARCI’s approval of a list of laboratory screening limits for drugs and medications that are not included as controlled therapeutic medications. Despite the mandatory language of the statute, nothing in the record suggests that the Division has made any effort to implement this provision, either by submitting a list to ARCI or even by making an inquiry to ARCI as to whether it would consider such a submission. Rather, the Division has passively chosen to interpret the lack of ARCI- approved laboratory screening limits as endorsing a “zero tolerance” policy for all ARCI Guideline substances not included in the ARCI Medication Schedule. It is patently arbitrary for the Division to use the lack of screening limits as an opportunity to pick cocaine from among 700-plus substances in the ARCI Guidelines for “zero tolerance” treatment. Some distinguishing principle must be articulated to separate cocaine from the other substances in the ARCI Guidelines, given the lack of evidence that the Division in fact treats all drugs and substances that are not on the ARCI Medication Schedule with a “zero tolerance” policy. The Division could eliminate this ambiguity by following its statutory directive to adopt a rule setting laboratory screening limits for drugs and medications that are not included as controlled therapeutic medications. Section 550.2415(1) includes some permissive rulemaking actions that the Division may choose to take. Paragraph (1)(b) provides that the Division may solicit input from the Department of Agriculture and Consumer Services and may adopt rules that specify “normal physiological concentrations of naturally occurring substances in the natural untreated animal.” The Division also may adopt rules that specify acceptable levels of environmental contaminants and trace levels of substances in test samples. Several other states have chosen to treat BZE as an environmental contaminant and to set acceptable concentration levels for the drug in the system of a racing animal. This practice appears sensible and consistent with the accepted science, but the statute does not require the Division to follow it. However, the Division fails to adopt rules at its own enforcement peril.14/ In its Proposed Final Order, the Division uses paragraph (1)(b) to defend its failure to adopt thresholds for cocaine and its metabolites, arguing that the statute is permissive as to adopting rules that establish screening limits for environmental contaminants such as cocaine. Throughout the hearing, the Division resisted the notion that BZE or EME are environmental contaminants, and thus its late embrace of that categorization is somewhat disingenuous. In any event, the Division fails to read paragraph (1)(b) in its entirety. The first sentence provides: “It is a violation of this section for a race-day specimen to contain a level of a naturally occurring substance which exceeds normal physiological concentrations.” To find a violation, the Division must first determine what level of a naturally occurring substance is excessive. Due process for the licensee requires no less. The Division fails to explain how it can enforce the quoted prohibition without a rule that specifies “acceptable levels of environmental contaminants and trace levels of substances in test samples.” However, the permissive language of the statute gives the Division discretion to avoid such an explanation until it attempts to enforce the prohibition. A rule is not required. Finally, the Division attempts to justify its failure to establish screening limits by reference to section 550.2415(13), which provides: The division may implement by rule medication levels for racing greyhounds recommended by the University of Florida College of Veterinary Medicine developed pursuant to an agreement between the Division of Pari-mutuel Wagering and the University of Florida College of Veterinary Medicine. The University of Florida College of Veterinary Medicine may provide written notification to the division that it has completed research or review on a particular drug pursuant to the agreement and when the College of Veterinary Medicine has completed a final report of its findings, conclusions, and recommendations to the division. The Division argues that subsection (13) means that any medication levels adopted in the Division’s rules must be based on a recommendation from the UF Lab, and that the UF Lab has not recommended a threshold for cocaine or its metabolites. The Division argues that it would be an invalid exercise of delegated legislative authority to adopt any threshold for racing greyhounds without a recommendation from the UF Lab. This argument is not well taken. Subsection (13) does not refer narrowly to the UF Lab but to the University of Florida College of Veterinary Medicine (“College”). The statute contemplates a contract between the Division and the College under which the College would use its medical knowledge to recommend “medication levels for racing greyhounds.” There is at least an implication that a medical opinion beyond the laboratory testing expertise of the UF Lab is contemplated. Also, subsection (13) is entirely permissive. It allows the Division to implement by rule medication levels recommended by the College, should the Division and the College choose to enter into a contract for that purpose. If the Division’s argument were accepted, then it could evade any responsibility for adopting rules by the simple expedient of never entering a contract with the College. In fact, nothing in the language of subsection (13) exempts the Division from the mandatory rulemaking requirements of subsection (7).
The Issue The Petitioner has accused the Respondent, Frank Rudolph Solimena, with a violation of Rule 7E-1.06(11)(a), Florida Administrative Code, which reads: The running of a horse in a race with any narcotic, stimulant, depressant or local anesthetic is prohibited. If the stewards shall find that any narcotic, stimulant, depressant or local anesthetic has been administered or attempted to be administered, internally or externally, to a horse before a race, such stewards shall impose such punishment and take such other action as they may deem proper under any of the rules, including reference to the Division, against every person found by them to have administered, or to have attempted to administer, or to have caused to be administered, or to have caused an attempt to administer, or to have conspired with another person to administer, such narcotic, stimulant, depressant or local anesthetic. If the Division laboratory shall find a positive identification of such medication, such finding shall constitute prima facie evidence that such horse raced with the medication in its system. Under the accusation, the Respondent is made responsible pursuant to the provisions of Rule 7E-1.18(3), Florida Administrative Code, referred to herein as the absolute insurer's rule, which provides that: The trainer shall be responsible for, and be the insurer of the condition of the horses he enters. Trainers are presumed to know the rules of the Division. Specifically, Respondent Solimena is accused under facts that allege that on December 4, 1978 a horse trained by the Respondent was entered and ran in the second race at Tropical Park, Inc. (at Calder Race Couse). Subsequent to the race a urine specimen was taken from the horse and the specimen was analyzed by the Petitioner's laboratory. It is further alleged that the Division of Pari- Mutuel Wagering laboratory reported the results of the test and that the report showed that the urine sample contained Despropionyl Fentanyl, which is classified as a derivative of Fentanyl, a narcotic compound.
Findings Of Fact This cause comes on for consideration based upon a Notice to Show Cause (Administrative Complaint) filed by the Petitioner, State of Florida, Department of Business Regulation, Division of Pari-Mutuel Wagering, against Frank Rudolph Solimena. At all times pertinent to the Notice to Show Cause, Frank Rudolph Solimena was the holder of license Nos. K-00257 and 5-00863, issued by the Petitioner to the Respondent, Frank Rudolph Solimena, enabling Solimena to operate as horse trainer and horse owner, respectively, at the several race tracks located in the State of Florida. The Petitioner, State of Florida, Department of Business Regulation, Division of Pari-Mutuel Wagering, is an agency of the State of Florida charged with the duty of the regulation of, among other things, the matters pertaining to thoroughbred horse racing in the State of Florida. The authority for such regulation is found in Chapter 550, Florida Statutes, and those rules promulgated to enforce the provisions of that chapter. Within that body of rules, are Rules 7E-1.06(11)(a) and 7E-1.18(3), Florida Administrative Code, alluded to in the issues statement of this Recommended Order. Those rules as set out in the issues statement shall serve as a basis for determining the facts and reaching the legal conclusions necessary to formulate a decision in this matter and official recognition is taken of the aforementioned rules. The facts in this case show that the Respondent, Frank Rudolph Solimena, was acting as a horse trainer on December 4, 1978, at Tropical Park, Inc., in Florida. On that date, Carpe Diem, a horse trained by the Respondent, ran in the second race and finished in first position. Following the race, and on the same date, a urine specimen was taken from the horse, Carpe Diem. That urine specimen was subsequently analyzed through a series of tests and the test directed to the urine sample revealed a positive identification of a substance known as Dispropionyl Fentanyl, which is classified as a derivative of Fentanyl, a narcotic. The process which occurred in Carpe Diem after he received the Fentanyl, was that the Fentanyl was metabolized in the horse's system to become Dispropionyl Fentanyl, and that latter substance acted as a central nervous system stimulant in the horse during the course of the race. The narcotic, Fentanyl, carries the trade name, Sublimaze. The horse referred to above was under the care and treatment of Carl J. Meyer, D.V.M., on the date of the race in question. In addition to treating this horse that is the subject of this complaint, Dr. Meyer had treated other horses for which the Respondent was the trainer, beginning in 1976 and continuing through December, 1978. One of the conditions for which the disputed horse and other horses trained by the Respondent reportedly received treatment was a condition described by Dr. Meyer as Myopathy. 1/ This treatment form was administered to Carpe Diem on the date of the disputed race event. According to Dr. Meyer, Myopathy is a treatment for muscle soreness and is a type acupuncture in which needles are injected at pressure points over the sore muscles and authorized medications are injected into those muscle areas, to include ACTH, Stroids and Lasix. When the Respondent received one of the billing statements from Dr. Meyer which indicated that horses that were being trained by the Respondent had been treated for Myopathy, the Respondent inquired of Dr. Meyer what Myopathy treatments consisted of. Dr. Meyer at that point told the Respondent that you take a needle and put it in certain pressure points in the muscle to relieve bursitis and/or pressure. When questioned in the course of the hearing about further details of the treatment for Myopathy, Dr. Meyer was unable to give a satisfactory explanation of the origins of the treatment for Myopathy and literature related to that treatment which might have been published through research in veterinary medicine. Within the same time frame that Dr. Meyer claimed to be treating the subject horse for Myopathy, he had purchased the substance, Sublimaze, and by his testimony stated that this narcotic had been used on horses other than the one involved in this accusation. The use in the unrelated group of horses was as a pre-anesthetic agent and to treat colic conditions. He claimed to use 18 milligrams as a pre-anesthetic dose and as much as 25 milligrams over a period of time to control the colic condition. The utilization of Sublimaze as a pre-anesthetic agent and for treatment for colic was disputed in the course of the bearing by the testimony of Dr. George Maylin, D.V.M., who also has a Ph.D. in pharmacology. At the time Dr. Maylin gave his testimony, he was an associate professor of toxicology at the New York State College of Veterinary Medicine, Cornell University, Ithica, New York. Dr. Maylin has done extensive research on the effect of Sublimaze as a pre-anesthetic agent and concludes that it is not a predictable anesthetic agent, and that a 10 milligram dosage would not have a desired effect in the use of pre-anesthetic cases. In Dr. Maylin's opinion, 50 milligrams would be the indicated amount. In addition, Dr. Maylin's extensive testing of Sublimaze in a colic model situation pointed out the ineffectiveness of Sublimaze as an analgesic in those colic cases. Finally, Dr. Maylin does not believe that 25 milligrams of Sublimaze over an extended period of time could be effective in treating the colic condition. Other trainers had horses which had been treated by Dr. Meyer around the same time period as the horse of the Respondent, which is the subject of this hearing. Those trainers are Ohayneo Reyes and Edward E. Plesa. Both Reyes and Plesa questioned Dr. Meyer on the subject of Meyer injecting Sublimaze in their race horses. Those questions were asked following accusations placed against those trainers for violations similar to those in the current case of the Respondent. The answers given to Reyes and Plesa by Dr. Meyer indicated that he had in fact injected the horses with Sublimaze, but he told them not to worry because the substance could not be detected. Dr. Meyer also testified in the course of the hearing that he had placed wagers on some of the horses being treated for Myopathy. An analysis of the evidence leads to the factual conclusion that Dr. Meyer infused Carpe Diem, for which the Respondent stands accused through this Notice to Show Cause, with Sublimaze, otherwise identified as Fentanyl, and that he gave those injections under the guise of a treatment for Myopathy, when in fact the so-called treatment for Myopathy was a ruse to enable Dr. Meyer to administer the Sublimaze. This act by Dr. Meyer directed to the horse of the Respondent involved in this accusation, was unknown to the Respondent at the time the injection was administered and nothing that had transpired prior to this placed Respondent in the position of having reason to believe that Dr. Meyer was pursuing this course of conduct. In summary, although the horse in question ran in the subject race while under the effects of Fentanyl, metabolized to become Dispropionyl Fentanyl, it was not through an act of the Respondent.
Recommendation It is recommended that the action through the Notice to Show Cause against the Respondent, Frank Rudolph Solimena, be DISMISSED. DONE AND ENTERED this 10th day of September, 1979, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32381 (904) 488-9675
The Issue The issue in this case concerns whether the Respondent violated Section 585.80, Florida Statutes, by selling or offering to sell animal products that were adulterated, misbranded, or uninspected, and, if so, a determination of the appropriate administrative fine to be imposed.
Findings Of Fact Respondent is engaged in the business of selling meat products at its location at 1221 Northwest 40th Avenue, Lauderhill, Florida 33313, and holds Food Permit No. 55403, pursuant to Section 500.12, Florida Statutes. On February 12, 1993, a United States Department of Agriculture Compliance Officer performed an inspection at Respondent's facility. During this inspection, the Compliance Officer examined and placed under detention approximately 63 pounds of uninspected meat product, including cow feet, cow tails, cow head meat, goat stomachs, and beef blood. Goat stomachs may not be sold as human food under any circumstances in the State of Florida. The stomachs at issue were also adulterated with ingesta, or the contents of the stomach at the time the animal was slaughtered. Respondent purchased the meat at issue from a farmer in Avon, Florida, and had sold approximately 415 pounds of the same product to its customers prior to the Compliance Officer's inspection. 1/ At the time of Respondent's selling and offering for sale of the adulterated and uninspected meat products, Respondent's owner was aware of the illegality of his actions. By means of the Department's letter dated June 2, 1991, Respondent has previously received a formal notice of warning concerning a separate violation of the same statutory prohibition, namely the sale and offer for sale of 253 pounds of uninspected goat meat. The Florida meat inspection program requires an animal to be inspected both before and after slaughter. Antemortem inspection is necessary to determine the general health of the animal, while postmortem inspection may reveal pathological conditions and diseases. The tissue is also examined for evidence of abscess, parasites, and tuberculosis. These steps must be taken to safeguard the consumer from exposure to contaminated and diseased meat products.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that the Department of Agriculture and Consumer Services issue a Final Order in this case to the following effect: Concluding that the Respondent is guilty of a violation of Section 585.80(2), Florida Statutes, by selling uninspected animal products and adulterated animal products: Concluding that the Respondent is guilty of a violation of Section 585.80(2), Florida Statutes, by offering for sale uninspected animal products and adulterated animal products; and Imposing an administrative fine in the amount of $1,000.00 for each of the two violations mentioned above, for a grand total of $2,000.00 in administrative fines. DONE AND ENTERED this 27th day of May 1994 in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH 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 27th day of May 1994.
