The Issue The Petitioner has accused the Respondent, Francis Clifford Joyce, with a violation of Rule 7E-1.06(11)(a), Florida Administrative Code, which reads: a) The running of a horse in a race with any narcotic, stimulant, depressant or local anesthetic is prohibited. If the stewards shall find that any narcotic, stimulant, depressant or local anesthetic has been administered or attempted to be administered, internally or externally, to a horse before a race, such stewards shall impose such punishment and take such other action as they may deem proper under any of the rules, including reference to the Division, against every person found by them to have administered, or to have attempted to administer, or to have caused to be administered, or to have caused an attempt to 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 medi- cation, 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 Joyce is accused under facts that allege that on October 16, 1978, the horse, Hawaiian Gardens, trained by the Respondent did race in the Second (2nd) race at Calder race course, finishing in the first (1st) position. Subsequent to the race on the same date, a urine specimen was taken from the horse, Hawaiian Gardens, and assigned sample number S 08484 A, and that specimen was allegedly analyzed by the Petitioner's laboratory. It is further alleged that on December 22, 1978, the Division of Pari-Mutuel Wagering laboratory reported the results of a test and that 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 Francis Clifford Joyce. At all times pertinent to the Administrative Complaint, Francis Clifford Joyce was the holder of license Nos. K-4547, K-4201 and K-2575 issued by the Petitioner to the Respondent, Francis Clifford Joyce, to operate as a horse trainer for horses racing at the various race tracks located in the State of Florida. The Petitioner, State of Florida, Department of Business Regulation, Division of Pari-Mutuel Wagering, is an agency of the State of Florida charged with the duty of the regulation of among other things, the matters pertaining to thoroughbred horse racing in the State of Florida. The authority for such regulation is found in Chapter 550, Florida Statutes, and those rules promulgated to enforce the provisions of that chapter. Included in the body of rules are Rules 7E-1.00(11)(a) and 7E-1.18(3), Florida Administrative Code, alluded to in the issue statement of this Recommended Order. These 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 reveal that the Respondent, Francis Clifford Joyce, was operating in his capacity as a horse trainer on October 16, 1978, at the Calder race course in Broward County, Florida. On that date, a horse for which he was the trainer, named Hawaiian Gardens, ran in the second race and finished in first place. Prior to the race, the horse, Hawaiian Gardens, had been in the custody and control of the Respondent in the sense that the horse was in the presence of the Respondent before the race. The horse was treated in the morning prior to the race by medications, ACTH, Steroids, Lasix and for Myopathy, as shown by the Petitioner's Exhibit No. 5 admitted into evidence, which is a copy of the invoice of the treating veterinarian, Carl J. Meyer, D.V.M. The first of the medications was given around eight o'clock and further medication was given around nine or nine thirty and that medication was Lasix, which is a substance given for horses who have tendencies to bleed. Around eleven thirty or twelve o'clock an injection was given by Dr. Meyer for a condition which Dr. Meyer later described as Myopathy. Joyce saw the injection administered but did not question Dr. Meyer about what was in the injection. The second race occurred around 1:15 p.m. and, subsequent to the race, Hawaiian Gardens was taken to the detention barn for purposes of taking a urine sample for testing to detect any narcotics. The horse entered the area of the detention barn around 2:00 p.m. The horse started a cooling down period and walk-off around 2:05 p.m. and was back in the stall at 2:25 p.m., at which point the urine sample was taken and the horse was out of the detention barn at 2:30 p.m. The next day, on October 17, 1978, the Respondent inquired of Dr. Meyer about the previous day's treatment for Hawaiian Gardens. Dr. Meyer replied that he gave the horse a treatment for Myopathy, attention to the horse's nervous system. Joyce made no further inquiry of Meyer about the treatment for Myopathy. The urine sample of the horse, Hawaiian Gardens, was examined by a series of tests and the urine sample revealed a positive identification of a substance known as Despropionyl Fentanyl, which is classified as a derivative of Fentanyl Citrate, a narcotic. This particular narcotic, Fentanyl Citrate, metabolizes to become Despropionyl Fentanyl, a central nervous system stimulant in horses. The trade name for Fentanyl Citrate is Sublimaze. Under the circumstances, it is clear that the horse, Hawaiian Gardens, had run in the second race at Calder race course on October 16, 1978, at a time the horse had the substance, Despropionyl Fentanyl, in its system and this had resulted from Dr. Meyer's injection of Sublimaze around eleven thirty or twelve o'clock on October 16, 1978, which he fraudulently called a treatment for Myopathy. Joyce had no knowledge of Meyer's intentions nor the act of injecting the horse with Sublimaze.
Recommendation It is recommended that the case against the Respondent, Francis Clifford Joyce, related to the incident on October 16, 1978, involving the horse, Hawaiian Gardens, be DISMISSED. DONE AND ENTERED this 23rd day of August, 1979, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: S. Frates, Esquire Frates, Floyd, Pearson, Stewart, Richman & Greer, P.A. One Biscayne Boulevard, 25th Floor Miami, Florida 33131 David M. Maloney, Esquire Staff Attorney Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Mr. Francis Clifford Joyce 1015 South 17th Avenue Hollywood, Florida 33020 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF BUSINESS REGULATION STATE OF FLORIDA, DEPARTMENT OF BUSINESS REGULATION, DIVISION OF PARI-MUTUEL WAGERING, Petitioner, vs. CASE NO. 79-227 FRANCIS CLIFFORD JOYCE, Respondent. /
Findings Of Fact For more than 20 years, petitioner has worked as a state employee in law enforcement or as a teacher of persons' training for law enforcement work. From November of 1955 until September of 1976, he was employed as a special agent by the Florida Sheriffs' Bureau. From October of 1965 to March of 1972, he taught at Florida State University, first as an instructor in criminology, then as an assistant professor. On March 20, 1972, petitioner began working for respondent, in its Division of Animal Industry, as an agricultural investigator supervisor in the livestock theft program. Six months later petitioner attained career service status in this position, which has position number 0959. Position number 0959 is the only position within the single agency class of agricultural investigator supervisor. During the 1976 legislative session, and even before the session began, at committee hearings conducted in the course of the appropriations process, there was talk of abolishing the livestock theft program, a proposal which respondent's personnel resisted to the extent practicable. Although petitioner's name was never mentioned in these deliberations, on at least one occasion a legislator made specific reference to abolishing the position of agricultural investigator supervisor. After passage of the appropriations bill by the 1976 legislature, the Hon. Jack D. Gordon, Chairman, Senate Committee on Ways and Means, and the Hon. Edmond M. Fortune, Chairman, House Committee on Appropriations, wrote a letter to the Hon. J. H. Williams, Lieutenant Governor and Secretary of Administration, and the Hon. Ernest Ellison, Auditor General, to which they attached "computerized program component work papers for . . . use in development of the agencies' approved operating budgets for 1976-77." Respondent's Exhibit No. 1. The fourth item on the attachment reads, as follows: REDUCTION IN LIVESTOCK THEFT PROGRAM AGRICULTURAL INVESTIGATOR SPECIALIST; AGRICULTURAL INVESTIGATORS At no time has there been a position within respondent department called "agricultural investigator specialist." Notwithstanding the use of the title "agricultural investigator specialist," the legislature intended to abolish the position of "agricultural investigator supervisor." Mr. C. Douglas Shelby, now assistant director of administration for respondent, was respondent's personnel officer in June of 1976; the Hon. Doyle Conner, head of respondent, had delegated to Mr. Shelby authority to deal with personnel matters generally. When the appropriations bill passed, Mr. Shelby and Jerry Gullo, a training manager for respondent, began work on implementing the legislation. After considering Emergency Rule 22 AER 76-1, which took effect on June 15, 1976, Mr. Gullo drafted a letter to petitioner for Mr. Shelby's signature, dated June 16, 1976, notifying petitioner that his job would no longer exist as of the close of business on June 30, 1976. The letter was mailed on June 16, 1976; petitioner received notice of the letter's arrival on June 17, 1976, but actually saw it and read it for the first time on June 18, 1976. A copy of the letter was admitted in evidence as respondent's exhibit No. 5. In part, the letter advised petitioner that "you have the right to request a demotion to a class in which you previously held permanent status or reassignment in a class in which you held permanent status in lieu of layoff . . ." On receipt of the letter dated June 16, 1976, petitioner drafted a letter requesting reassignment or demotion, but when, on June 21, 1976, Mr. Gullo told petitioner that there would be no possibility of reassignment or demotion under Emergency Rule 22 AER 76-1, because, said Mr. Gullo, petitioner had not attained career service status in any class other than that of agricultural investigator supervisor, petitioner decided there would be no point in submitting the letter he had drafted and did not do so. Also on June 21, 1976, official notice of the abolition of respondents position number 0959 was mailed by respondent to Mr. Kennison. (Respondent's exhibit No. 3) Petitioner had no further discussion with respondent's personnel about the layoff before he left respondent's employ. On June 30, 1976, Lieutenant Governor William, acting as Secretary of Administration, and in response to a letter from Mr. Shelby, which was received in evidence as respondent's exhibit No. 3, approved "[s]tatewide within the Division of Animal Industry," respondent's exhibit No. 4, as the competitive area for purposes of Emergency Rule 22 AER 76-1. Id. On July 1, 1976, petitioner was out of a job, despite the good work he had done in the livestock theft program and his many years of state employment. Petitioner filed a timely appeal with the Career Service Commission. Respondent notified the State Personnel Director of the layoff by letter dated July 12, 1976, which came in evidence as respondent's exhibit No. 2. STATEMENT REQUIRED BY STUCKEY'S OF EASTMAN, GEORGIA v. DEPARTMENT OF TRANSPORTATION, 340 So.2d 119 (Fla. 1st DCA 1976) Respondent submitted no proposed findings of fact. Paragraphs two, three, and five through twelve of petitioner's proposed findings of fact have been adopted, in substance. Paragraph one of petitioner's proposed fact findings has been adopted, in substance, assuming "at all times material hereto" is intended to mean from September 21, 1972, until June 30, 1976, or some portion of that time period. Paragraph four of petitioner's proposed fact findings has been adopted, in substance, except for the reference to respondent's exhibit No. 3, which is a copy of a letter from Mr. Shelby to Mr. Kennison, dated June 21, 1976. Paragraphs thirteen and fourteen of petitioner's proposed fact findings accurately reflect the evidence, but are irrelevant to resolution of the dispute.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That respondent's layoff of petitioner be upheld. That petitioner be deemed to have made timely request for demotion or reassignment to a position in a class (other than agricultural investigator supervisor) in which he has held permanent career service status, if any there be. That respondent pay petitioner two weeks' pay at the hourly rate petitioner was earning at the time of the layoff. DONE and ENTERED this 20th day of June, 1977, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Jay Hendrickson, Esquire 836 East Lafayette Street Tallahassee, Florida 32301 Robert A. Chastain, Esquire Room 513, Mayo Building Tallahassee, Florida 32304 Conley M. Kennison Attn: Mrs. Dorothy Roberts Career Service Commission Department of Administration Room 530 Carlton Building Tallahassee, Florida 32304
Findings Of Fact Respondent Janice Prather lives in a subdivision in unincorporated Bay County, Florida. She owns her house, which faces Brookins Road and stands on a lot 135 feet long and 100 feet wide. STAR In April of this year Ms. Prather acquired a six-year old sorrel mare, a Tennessee Walking Horse named Star, who stands 15.2 hands high. Ms. Brunty, whose horse trailer was used to bring the horse to Ms. Prather's home, described Star and Rhonda, Ms. Prather's teenaged daughter, as a "beautiful combination." Star is a gentle horse and small children, including Mr. Serpas grandchildren, have petted her. Some days Rhonda and her friend Michelle take Star riding and let her graze in Michelle's back yard before bringing her back. She spent one night at Michelle's. But most of the time she is confined to the Prathers' fenced back yard, although she was not there for a week or two around the time of the fair. SIX POUNDS A DAY Star produces manure at a rate of about six pounds a Day. Ms. Prather has taken some of this manure to church and to the parsonage for use on shrubbery and gardens there. Over an unspecified period, she has also taken horse manure to Mr. Harold B. Taylor of Millville about three times a week. It has made his gardens green. Thelma King has also used Star's excrement in her garden. Not all of the manure Star has deposited in the Prather back yard has left the premises. Trenches have been dug along the fence line and manure has been buried there. Before removing the manure that she has given away, Ms. Prather or others have gathered it in buckets which are kept in a child's wagon in the back yard, and which may stand there for several days. Nor do the droppings reach the buckets every day. There was testimony that Star's excrement lay where it fell for weeks on end, and Ms. Prather, who holds a full- time job, conceded that she did not remove the manure daily, although she insisted that there was almost daily removal. Sometimes the manure would be covered over with an inch or two of sand. When it rains, some of the waste leaves in the water that flows across the Prather back yard, turns brown and smelly, and covers the neighbors yards. By the time of the hearing, the ground in the Prather back yard, which has a high water table, was saturated with horse urine. Subdivision residents depend on individual wells and septic tanks. A CONGREGATION OF FLIES Most witnesses conceded that there were houseflies in the area long before Star's arrival, but there was overwhelming agreement that the horse bought with it a significant increase in their number. Mr. Serpas, whose house stands directly behind Ms. Prather's testified to the increase and reported, without contradiction, that a "tremendous number" of these flies enter his house whenever a door is opened. The Atwells, whose house is 100 feet from Ms. Prather's lot line also have more flies inside their house than before Star came to live in the neighborhood. The Clarks, whose house is next door to Ms. Prather's, installed an electronic fly killing device from which they regularly remove handfuls of dead flies. It was Mr. Clark who testified that Star's presence has meant "a congregation of flies" in and over his yard as well as Ms. Prather's. The housefly (Musca domestica) is a real, if familiar, health hazard. Because houseflies eat the same things people do, their control is a crucial element in food hygiene. When they land on food intended for human consumption, they bring with them germs they have picked up elsewhere. Horse manure is among the very best breeding grounds for houseflies. Adult houseflies deposit eggs in horse manure where larvae then pupae thrive before emerging as a new generation of adult houseflies seven to ten days later and flying from dung to food. Houseflies are capable of transmitting diseases to human beings and are a major factor in the transmission of some diseases. The wooden fence Ms. Prather has begun building around her back yard has not diminished the number of flies or the "barn yard odor," also attributable to Star's excrement. Both the flies and the excrement were the basis for the neighbors' repeated complaints to the Bay County Health Department (BCHD). ACTION BY THE AUTHORITIES With the neighbors' complaints, there began a series of visits by BCHD employees. BCHD records reflect that the inspector concluded that the neighbors' complaints were "invalid" on April 13, 1983, and reached the same conclusion on April 18, 1983, when the "yard was clean." Respondent's Exhibit No. 3. On May 2, 1983, the BCHD inspector found "[e]ight piles of horse manure in yard. One wagon full of manure also," Respondent's Exhibit No. 3, which, however, was at the BCHD's request, "cleaned up" by May 6, 1983. Before visiting thereafter, the BCHD inspector called ahead, as Ms. Prather had requested. On May 13, 1983, a BCHD employee took pictures of the horse manure he found on that visit. On May 24, 1983, two BCHD employees found "[s]ome manure" but "no flies." Respondent's Exhibit No. 5. Early on BCHD employees suggested to Ms. Prather informally that she board Star somewhere else. They eventually directed her in writing to remove the horse and threatened to initiate the present proceedings to impose an administrative fine if she did not. She received the administrative complaint on or before August 4, 1983. Photographs taken on November 19, 1983, Petitioner's Exhibit No. 1 show an accumulation of dung that must have been at least four days in the making. Star was in residence on November 5, 1983, and, indeed, during the whole period between August 4, 1983, and the time of the hearing, with the possible exception of a two-week period.
Recommendation Accordingly, it is RECOMMENDED: That petitioner impose a fine against respondent in the amount of one hundred dollars ($100.00). DONE and ENTERED this 6th day of January, 1984, in Tallahassee, Florida. ROBERT T. BENTON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of January, 1984. COPIES FURNISHED: JOHN PEARCE, ESQUIRE SUITE 200-A 2639 NORTH MONROE STREET TALLAHASSEE, FLORIDA 32303 JANICE PRATHER 3013 BROOKINS ROAD PANAMA CITY, FLORIDA 32405 DAVID PINGREE, SECRETARY DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES 1323 WINEWOOD BOULEVARD TALLAHASSEE, FLORIDA 32301
The Issue Whether Petitioner proved by clear and convincing evidence that Respondent is guilty of the offenses alleged in the Order of Summary Suspension and in the Administrative Complaint.
Findings Of Fact The Division is the agency of the State of Florida charged with regulating pari-mutuel wagering pursuant to Chapter 550, Florida Statutes. At all times relevant to this proceeding, Respondent held a pari-mutuel wagering trainer/thoroughbred license number 15043-1021 issued by the Division. Respondent has been a thoroughbred racehorse trainer for approximately 30 years. Excluding the allegations pertaining to this proceeding, Respondent has had only two prior disciplinary actions taken against his license by the Division. Each of the prior disciplinary actions involved the post-race detection of a drug in a horse trained by Respondent. Although the drug at issue in the prior disciplinary proceedings cannot be in a horse’s system during a race, those drugs can legally be administered to race horses for therapeutic use. Neither violation resulted in a suspension of Respondent’s license. At all times relevant to this proceeding, Respondent trained horses that raced at Calder Race Course in Dade County, Florida. It is undisputed that at all times relevant to this proceeding, Respondent was the trainer of record for the race horses “Red Nation,” “Shea Stadium,” and “Mi Corredora.” As the trainer of record, Respondent was the absolute insurer for the condition of his horses.4 RED NATION It is undisputed that Red Nation was entered in the seventh race at Calder on May 17, 2008, and finished the race in first place. Following the seventh race at Calder on May 17, 2008, a urine sample and a blood sample were taken from Red Nation.5 Urine sample 407762 was collected on May 17, 2008, and processed in accordance with established procedures. Urine sample 407762 was analyzed by the University of Florida Racing Laboratory (the Lab), which is retained by the Division to test urine and blood samples from animals racing at pari-mutuel facilities in Florida.6 The Lab found that the sample contained Despropionyl Fentanyl (the subject metabolite derivative), which is a metabolite derivative of Fentanyl (the subject drug). The subject metabolite derivative is the substance that remains in the urine after the horse’s body has processed the subject drug. The sample concentration of the subject metabolite derivative was 2.8 nanograms per milliliter. SHEA STADIUM It is undisputed that Shea Stadium was entered in the sixth race at Calder on November 20, 2008, and finished the race in second place. Following the sixth race at Calder on November 20, 2008, a urine sample and a blood sample were taken from Shea Stadium. Urine sample 423241 was collected on November 20, 2008, and processed in accordance with established procedures. Urine sample 423241 was analyzed by the Lab. The Lab found that the sample contained the subject metabolite derivative. The sample concentration of the subject metabolite derivative was 2.8 nanograms per milliliter. MI CORREDORA It is undisputed that Mi Corredora was entered in the third race at Calder on November 22, 2008, and finished the race in first place. Following the third race at Calder on November 22, 2008, a urine sample and a blood sample were taken from Mi Corredora. Urine sample 424032 was collected on November 20, 2008, and processed in accordance with established procedures. Urine sample 424032 was analyzed by the Lab. The Lab found that the sample contained the subject metabolite derivative. The sample concentration of the subject metabolite derivative was 5.7 nanograms per milliliter. SUMMARY SUSPENSION On February 4, 2009, the Division issued an Order of Summary Suspension of Respondent’s licensure pursuant to Section 550.2415(3(b), Florida Statutes. The Division contends in the Order of Summary Suspension and in the Administrative Complaint that urine sample 407762 was taken from Red Nation, that urine sample 423241 was taken from Shea Stadium, and that urine sample 424032 was taken from Mi Corredora FENTANYL The subject drug is a narcotic analgesic. The effect of the subject drug on a horse is dose dependent. A lower dose, 8 milligrams or less, stimulates a horse and makes the horse run faster. The subject drug was the drug of choice in the 70’s and early 80’s for “hopping” a horse to make it run faster. A dose above 8 milligrams causes the horse to lose coordination, which slows the running of the horse. After testing became more sophisticated, the subject drug lost its popularity. The subject drug has been designated by the Association of Racing Commissioners International as a Class 1 drug. Class 1 drugs have the highest potential to impact the performance of a horse in a race and they have no therapeutic value in a racehorse. The subject drug is not approved for use in horses in the United States by the U.S. Food and Drug Administration. A nanogram is one-thousandth of a microgram. A microgram is one-thousandth of a milligram. There was no evidence as to whether the levels of the subject metabolite derivative detected in the subject urine samples would have had an impact to the performances of these racehorses in the subject races. The testimony of Dr. Sams established that all appropriate protocols were followed in testing the three urine samples at issue in this proceeding. The testing procedure used by the Lab is considered to be, as phrased by Dr. Sams, the gold standard for the identification of drugs in urine. The presence of the subject metabolite derivative in each of the three urine samples at issue in this proceeding established that the subject drug had been administered to each horse from which one of the subject samples had been drawn. The Lab thereafter submitted a report to the Division reflecting that the three urine samples at issue in this procedure had tested positive for the subject metabolite derivative. The report identified each sample only by the sample number. The Lab had no information to identify a sample by the name of the horse or trainer. POST-RACE SAMPLING Florida Administrative Code Rule 61D-6005 governs the post-race sampling process and provides, in relevant part, as follows: The winner of every race and other such racing animal participants the stewards, judges, division, or track veterinarian of the meet designate, shall be sent immediately after the race to the detention enclosure for examination by the authorized representative of the division and for the taking of urine, blood or other such samples as shall be directed for the monitoring and detection of both permissible and impermissible substances. . . . * * * The owner, trainer of record, groom, or other authorized person shall be (present in the testing enclosure) able to witness when urine, blood or other specimens are taken from that person’s racing animal. The specimen shall be sealed in its container, assigned an official sample number which is affixed to the specimen container, and the correspondingly numbered information portion of the sample tag shall be detached and signed by the owner, trainer, groom, or the authorized person as a witness to the taking and sealing of the specimen. The racing animal and authorized person shall remain in the detention enclosure until the sample tag is signed. Said specimens shall be maintained in such a manner as to preserve the integrity of the specimen. Specimen containers shall be of the disposable type and shall not be reused. Only those persons stated in subsection (3) of this rule shall be admitted at any time to the detention enclosure except the division staff immediately in charge of such work, the stewards or judges, or such other persons as shall be authorized by the director or the division veterinarian. * * * (6) All specimens taken by or under direction of the division veterinarian or other authorized representative of the division shall be delivered to the laboratory under contract with the division for official analysis. Each specimen shall be marked by number and date and also bear any information essential for its proper analysis; however, the identity of the racing animal from which the specimen was taken or the identity of its owner, trainer, jockey, stable, or kennel shall not be revealed to the laboratory staff until official analysis of the specimen is complete. . . . Ms. Neira is an investigator who has been employed by the Division for over 20 years. In discharging her official responsibilities, Ms. Neira has observed the post-race sampling process at Calder. Ms. Neira was not present when any of the subject samples were taken and she is not the custodian of the records maintained at by the Division at Calder. Those records are taken by persons employed by the Division. Those records are maintained in a secure location that is under the supervision of a Division employee. Ms. Neira has access to those records and she utilizes those records in the discharge of her official duties. After receiving the report from the Lab pertaining to the subject urine samples, Ms. Neira followed standard investigative protocol. Ms. Neira went to the Division’s South Florida Regional Office at the North Broward Regional Service Center in Fort Lauderdale, Florida (South Region) offices where the urine specimen cards (Specimen Cards) are kept in a locked file cabinet. The Specimen Cards collected at Calder are maintained separately from Specimen Cards taken from other licensed pari-mutuel facilities. The Specimen Cards for Calder are filed by the date the sample was taken. Ms. Neira located each of the Specimen Cards at issue in this proceeding using the specimen numbers. She thereafter matched each specimen number identified as being positive by the Lab report to that specimen number’s Specimen Card. While Ms. Neira is not the records custodian for the records maintained at the South Region Office, she has access to and utilizes those records in the discharge of her official duties. Each Specimen Card at issue in this proceeding (the Division’s Exhibits 3, 6 and 9, respectively) indicates the date the sample was taken, the name of the animal, its color and age, its race, its order of finish in the race, its owner, its trainer, the name of the person taking the urine sample, the names of the witnesses (including the owner’s witness), and the horse's tattoo number (taken from the horse’s upper inside lip). Each Specimen Card is a state record maintained in the regular course of business. The subject Specimen Cards established that urine sample 407762 was taken from Red Nation following the seventh race at Calder on May 17, 2008; that urine sample 423241 was taken from Shea Stadium following the sixth race at Calder on November 20, 2008; and that urine sample 424032 was taken from Mi Corredora following the third race at Calder on November 22, 2008. A form styled “State Detention Area Security Log” (Security Log) is kept at Calder in the regular course of business. Those Security Logs reflect the dates and times people and horses enter and exit the secure State Detention Area (the Detention Area). The Security Logs are completed by Division employees and are maintained in a secure location at Calder that is under the supervision of Division employees. Ms. Neira has access to those Security Logs in the discharge of her official duties. A document styled “Daily Record of Sample Collection for Race Horses” (Sample Record) is also kept at Calder in the ordinary course of business. Sample Records are completed by Division employees and are maintained in a secure location at Calder that is under the supervision of Division employees. Ms. Neira has access to the Sample Records in the discharge of her official duties. Following each race, the horses that must be tested are tagged by a veterinarian’s assistant (vet assistant) who tags the animal with an identifying tag and escorts the animal and the trainer’s representative7 to the Detention Area. After a cool-down period, the vet assistant takes the urine sample from the horse and the state veterinarian takes the blood sample from the animal. The state veterinarian and the vet assistant are employees of the Division. The urine sample and the blood sample are taken in the presence of witnesses, one of whom is the trainer’s representative. At that point the Specimen Card discussed above is filled out. The trainer’s’ representative signs the specimen card. The horse and the trainer’s representative are then released from the Detention Area. The Security Log for May 17, 2008 (the Division’s Exhibit 2), reflects that Andrew J. Mitchell entered the Detention Area with Red Nation following the seventh race at 3:10 p.m. and that he left the Detention Area with Red Nation at 3:50 p.m. The subject Sample Record (the Division’s Exhibit 4) reflects that Red Nation’s urine sample and blood sample were taken on that date at 3:50 p.m. Red Nation was identified by name and by tattoo number. The Sample Record reflects that the specimen number assigned these samples was 407762. On May 17, 2008, Mr. Mitchell acted as Respondent’s representative. Mr. Mitchell signed the Specimen Card admitted into evidence as the Division’s Exhibit 3 as the trainer’s representative. Urine sample 407762 was taken from Red Nation on May 17, 2008, following the seventh race at Calder. The Security Log for November 20, 2008 (the Division’s Exhibit 7) reflects that Victor H. Flores entered the Detention Area with Shea Stadium following the sixth race at 3:00 p.m. and that he left the Detention Area with Shea Stadium at 3:40 p.m. The Sample Record (the Division’s Exhibit 9) reflects that Shea Stadium’s urine sample and blood sample were taken on that date at 3:50 p.m. Shea Stadium was identified by name and by tattoo number. The Sample Record reflects that the specimen number assigned these samples was 423241. On November 20, 2008, Mr. Flores acted as Respondent’s representative. Mr. Flores signed the Specimen Card admitted into evidence as the Division’s Exhibit 8. Urine sample 423241 was taken from Shea Stadium on November 20, 2008, following the sixth race at Calder. The Security Log for November 22, 2008 (the Division’s Exhibit 12) reflects that Victor H. Flores entered the Detention Area with Mi Corredora following the third race at 1:30 p.m. and that he left the Detention Area with Mi Corredora at 2:00 p.m. The Sample Record (the Division’s Exhibit 14) reflects that Mi Corredora’s urine sample and blood sample were taken on that date at 2:00 p.m. Mi Corredora was identified by name and by tattoo number. The Sample Record reflects that the specimen number assigned these samples was 424032. On November 22, 2008, Mr. Flores acted as Respondent’s representative. Mr. Flores signed the Specimen Card admitted into evidence as the Division’s Exhibit 13. Urine sample 424032 was taken from Mi Corredora on November 22, 2008, following the third race at Calder. Each of the urine samples at issue in this proceeding was subjected to a split testing procedure as required by Section 550.2415(1)(a), Florida Statutes.
Recommendation Based on the foregoing findings of fact and conclusions of Law, it is RECOMMENDED that Petitioner enter a final order that adopts the Findings of Fact and Conclusions of Law set forth herein. It is, further, RECOMMENDED that the Final Order uphold the Order of Summary Suspension. It is, further, RECOMMENDED that the Final Order find Respondent guilty of the three counts alleged in the Administrative Complaint; impose against him an administrative fine in the amount of $1,000.00 per count (for a total of $3,000.00); suspend his licensure for a period of one year from the date of the emergency suspension; and require him to return any purse won by the horses at issue for the races at issue. DONE AND ENTERED this 14th day of May, 2009, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of May, 2009.
The Issue Whether Respondent committed the violations alleged in the Administrative Complaint and, if so, what penalty should be imposed.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: At all times material to the instant case, Respondent operated the House of India (Restaurant), an eating establishment located in Coral Gables, Florida. Respondent is now, and was at times material to the instant case, the holder of a license issued by Petitioner (license number 2313769) authorizing it to operate the Restaurant as a public food service establishment. On the morning of September 28, 2006, Douglas Morgadanes, a Sanitation and Safety Specialist with Petitioner, conducted an inspection of the premises of the Restaurant. His inspection revealed, among other things, that there were, what he believed to be, "rodent droppings" present in the Restaurant, creating "an unsanitary condition [that] could lead to food borne illnesses" if the food served to patrons became contaminated with these droppings. Before leaving the establishment, Mr. Morgadanes advised Respondent that this "unsanitary condition" had to be corrected within 24 hours. The Restaurant closed immediately following the inspection and an extensive cleanup operation was undertaken. In addition, Respondent had "[its] pest control company," Rentokil Pest Control (Rentokil), come to the Restaurant during or around the early morning hours of September 29, 2006, to perform "follow-up" rodent control services. (Rentokil had just made a "routine service" call to the Restaurant on September 27, 2006.) Mr. Morgadanes conducted a "callback" inspection of the Restaurant on September 29, 2006. His inspection revealed that, notwithstanding Respondent's cleanup and rodent control efforts, there were, what appeared to him to be, rodent droppings4 in an unused attic area above, and "a little bit to the side" of, the Restaurant's kitchen. Respondent was unable to produce for Mr. Morgadanes during the "callback" inspection documentation reflecting that Rentokil had been to the Restaurant to provide rodent control services. Respondent subsequently sent such documentation to Mr. Morgadanes' office by facsimile transmission. The documentation for the September 29, 2006, service call (9/29 Documentation) contained the following entries under "Service Performed by Rentokil" and "Cooperation Requested from Customer": Service Performed by Rentokil: Inspected and service[d] facility for pest[s]. Found no activity. Put out glue in kitchen underneath kitchen sink around hole near the back door. Cooperation Requested from Customer: Proofing Adequate? ? Yes ? No Please fix hole underneath sink to prevent rodent harborage. Sanitation Needed? ? Yes ? No Please clean dishwashing station. These entries on the 9/29 Documentation clearly and convincingly establish that, although Respondent had done cleanup work and retained the services of Rentokil in an effort to minimize the presence of rodents in the Restaurant, it had not eliminated harborage conditions on the premises.5 After receiving the documentation from Respondent, Petitioner issued the Administrative Complaint that is the subject of the instant controversy. This was the second time in less than a year that Petitioner had charged Respondent with violating Section 6-301.14 of the Food Code. A prior charge (filed in DBPR Case No. 2005064978) had been disposed of by stipulation, the terms of which were "adopted and incorporated" in a Final Order issued by Petitioner on January 12, 2006. There was no admission or finding of guilt. The "stipulated disposition" of the charge was Respondent's payment of a fine of $500.00 and attending a hospitality education program.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Petitioner issue a final order finding that Respondent committed the violations alleged in the Administrative Complaint and disciplining Respondent therefor by imposing a fine of $1,000.00 and directing that Respondent attend, at its own expense, a hospitality education program. DONE AND ENTERED this 22nd day of August, 2007, in Tallahassee, Leon County, Florida. S STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of August, 2007.
The Issue Whether Respondent's License to practice veterinary medicine should be revoked or suspended for alleged violations of Sections 474.31(6) & 474.31(12), Florida Statutes. An Order was issued on December 5, 1975, consolidating this case for hearing with the case of Florida Board of Veterinary Medicine vs. Cristobal M. Gonzalez Mayo, D.V.M., Docket No. 751925, because the cases involve similar issues of law and fact. At the hearing, Respondent was advised of his right to employ legal counsel to represent him at his own expense and he elected to represent himself. He also was advised of other rights under the Administrative Procedure Act, including the right to testify as a witness, if he so desired. Respondent indicated his understanding of these rights as explained to him by the Hearing Officer.
Findings Of Fact Respondent holds license no. 231 issued by the State of Florida, Department of Professional and Occupational Regulation, Board of Veterinary Medicine, which he received on March 30, 1944. The license is currently in effect (Petitioner's Exhibit l). Respondent has been a veterinarian for some 29 years and practices his profession at 3520 N.W. 36th Street, Miami, Florida (Testimony of McGee). Respondent employed Sergio Gutierrez, D.V.M., a veterinarian with approximately 25 years of experience, but who was not then licensed by the Florida Board of Veterinary Medicine, on December 6, 1974, for a period of approximately 3 months. At the time he was hired, Dr. Gutierrez exhibited various licenses from other jurisdictions to the Respondent and the latter gained the impression that Dr. Gutierrez held a temporary Florida license, even though he did not ask that it be shown to him. At that time, Dr. Gutierrez had submitted his license application to the Board of Veterinary Medicine, but it had not been acted upon by the Board (Testimony of Gutierrez, McGee). On December 6, 1974, James Gillece, an investigator with the Department of Professional and Occupational Regulation, took a cat to the Respondent's place of business in order to investigate a complaint that an unlicensed veterinarian was employed there. Upon arrival, he informed the receptionist that the cat was sick and asked her assistance. He was referred to Dr. Gutierrez who gave the cat inoculations for rabies and distemper. Gillece thereupon paid $19.00 for the services and received a receipt. He returned on December 13, presented his identification to Dr. Gutierrez and asked him if he was licensed to practice veterinary medicine. Dr. Gutierrez informed him that, although he was licensed in 40 states, he was not so licensed in Florida. Although Respondent was not present when the cat was treated, Dr. Gutierrez testified that Respondent exercised general supervision over his activities during his employment (Testimony of Gillece, Gutierrez, McGee) On March,4, 1975, Chery Lynn Correa, along with Dr. Calvin Dugas, D.V.M., both employees of the Knowles Animal Hospital in Miami took a Doberman Pinscher to Respondent's Clinic. Their visit was prompted by a request of their employer, Dr. Knowles, who had asked them to check a complaint that there were unlicensed veterinarians working for the Respondent. Without disclosing their purpose, Correa informed the Respondent's receptionist that she had brought the dog to get rabies and distemper shots and to have some bumps on its neck checked. She and Dr. Dugas were referred to Dr. Cristobal Gonzalez Mayo, in the treatment room. Mayo checked the dog and told them that the bumps were due to an improper diet. He then administered inoculations for rabies and distemper and checked the animal for worms. He also looked at the dog's throat and diagnosed tonsilitis for which he prescribed tetracycline pills. He also procured liquid shampoo called Tergex for a skin problem and gave instructions to bathe the dog once a week. He gave two more injections of antibiotics and cortisone. The receptionist signed Respondent's name to the certificate of rabies vaccination and to a form for issuance of a Dade County dog tag. Dr. Mayo signed Respondent's name to a Canine Interstate Health Certificate reflecting the administration of the inoculations. Correa paid the bill of $43.00 and then she and Dr. Dugas departed. During the time they were at Respondent's clinic, they did not see the Respondent on the premises (Testimony of Correa, Dugas, Petitioner's Exhibit 3). However, Respondent was in the back office at the time in question suffering from a headache and had asked his receptionist, to have Dr. Mayo give routine shots to animals during the day and only call him if a diagnosis was necessary. In view of Dr. Mayo's lack of a Florida license, Respondent did not permit him to diagnose, treat, or incise skin of an animal without supervision. In accordance with these directions, Respondent Mayo always checked with Respondent on a diagnosis and the latter would then prescribe the proper treatment. Dr. Mayo followed this procedure with respect to the dog brought to the clinic by Correa and received instructions from Respondent as to the treatment that was thereafter performed. Dr. Mayo was not licensed by the Florida Board of Veterinary Medicine until, July 27, 1975. Respondent professed the belief at the hearing that since secretaries could sign distemper and rabies certificates, he felt Dr. Mayo could sign an interstate health certificate although he normally signed such documents himself. Dr. Mayo testified that he had worked for the local humane society for over nine years and, during that period, had signed his own name to interstate health certificates by authorization of the board of directors of the society. The receptionist took the interstate health certificate in question to Dr. Mayo to sign because he had administered the shots to the animal. She was unaware of the fact that he was unlicensed (Testimony of McGee, Mayo, Uriquize, Petitioner's Exhibit 2).
Recommendation That the charges against Harold M. McGee, D.V.M., be dismissed. DONE and ENTERED this 2nd day of February, 1976, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings The Carlton Building Room 530 Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of February, 1976. COPIES FURNISHED: Ronald C. LaFace, Esquire 101, E. College Avenue P.O. Box 1752 Tallahassee, Florida Harold M. McGee, D.V.Mp. Miami Veterinary Clinic 3520 Northwest 36th Street Miami, Florida 33142
The Issue The issues are whether Respondent is guilty of employment discrimination, based on age or marital status, in violation of the Florida Civil Rights Act of 1992 and, if so, what relief is appropriate.
Findings Of Fact Respondent is an employer within the meaning of Section 760.02(7), Florida Statutes. Petitioner was born in 1940 or 1941. He has a high school education, and he has obtained some credits toward an associate’s degree in computer science/business management. Petitioner is married, but his children are grown and no longer living at home. Petitioner worked for 30 years with a large manufacturer, which reduced its workforce and terminated him. Shortly prior to moving to Florida in 1993, Petitioner worked for two and one-half years with the fish and game division of the Enfield, Connecticut, police department, enforcing fishing and hunting laws and dealing with animals. In April 1994, Petitioner applied with Respondent for the position of animal control officer. In May 1994, Keith Larson, Director of Animal Control, telephoned Petitioner and scheduled an interview for the following week. During this telephone call, Mr. Larson and Petitioner briefly discussed his animal control experience with the Enfield police department. Mr. Larson said that Petitioner sounded like a good candidate, and Petitioner felt that he had a good chance to get the job. During the interview, which took place on May 27, 1994, Mr. Larson asked Petitioner, “Do you really think you can get through the animal control course at this time of your life?” Petitioner replied in the affirmative. Mr. Larson also asked Respondent if he were married and if his wife would mind him working the “crazy hours” required of an animal control officer because wives sometimes caused problems. Petitioner assured him that his wife would present no problems. At the time, Petitioner has been working as a Wells Fargo security officer at the courthouse. A few days after his interview, he learned from a deputy that Mr. Larson had hired someone else for the animal control position. Shortly after learning that Mr. Larson had not chosen him for the job, Petitioner complained to Ms. Linda Skelton, presently Respondent’s Human Resources Manager and then one of Respondent’s Employee Relations Supervisors. Petitioner complained about the questions that Mr. Larson had asked during the interview. Ms. Skelton conducted an investigation, which consisted entirely of talking to Mr. Larson, who denied making any of the statements. Ms. Skelton then informed Petitioner that she had found no evidence of discrimination, but referred him to the Florida Commission on Human Relations and Equal Employment Opportunity Commission, if he wished to pursue the matter further. She encouraged Petitioner to reapply for an animal control position and promised a fair interview if he did. Choosing not to pursue legal relief, Petitioner reapplied for an animal control position four more times in the year following the unsuccessful initial application. On the first three reapplications, Mr. Larson declined to offer Petitioner an interview. On the fourth reapplication, Mr. Larson granted Petitioner another interview. On Petitioner’s fourth reapplication, Mr. Larson, in consultation with Ms. Skelton, arranged for a panel of County employees to interview candidates. The panel consisted of two firefighters, who were not familiar with the duties of animal control officers, and an animal control officer. Mr. Larson did not speak to any of the three panelists about their deliberations, so as to isolate himself from the selection process. However, the panelists knew Mr. Larson had formed the panel due to Petitioner’s earlier complaint about age and marital discrimination. The panel conducted its interviews in May 1995. The panelists were not particularly well-prepared to conduct interviews. The most prominent shortcoming emerged when one of the firefighters asked Petitioner’s brother, who was also interviewing for the animal control position, who was older-- Petitioner or his brother. The panelists did not take notes during the interviews. They administered a short written test to each applicant; during Petitioner’s test, one panelist continued to talk to him. Petitioner took offense at this distraction, as well as the waste of time spent on a discussion of Petitioner’s martial arts background. Given the simplicity of the test, the distraction was harmless, as was the discussion of martial arts. The deficiencies of the panel are attributable to the unsuitability of the panelists for their task; this was the first time that the panelists had interviewed applicants for an animal control position. After considering all of the applicants, the panelists recommended that Mr. Larson not hire any of the applicants, but instead try to obtain new applicants for the opening. Mr. Larson accepted this recommendation and readvertised the position. Petitioner did not apply for this or any subsequent animal control opening. After conducting another round of interviews, the panelists recommended that Mr. Larson hire Catherine Katzman. Mr. Larson did so. This was the last time that Mr. Larson used the panel to interview applicants for an animal control position. Petitioner’s career and education have had almost nothing to do with animal control. Although the record is not particularly well-developed on these points, it does not appear that much of the animal control officer’s duties in Charlotte County involve undomesticated animals, and it does not appear that much of Petitioner’s duties in the fish and game division of the Enfield police department involved domesticated animals. The job description for the animal control position calls for someone to apprehend animals and enforce the County’s animal control ordinances. The educational and physical demands are modest: graduation from a high school or vocational school with “some animal contact work experience” and “moderate physical activity.” The job description notes that the position requires knowledge of animal control procedures, relevant local law, and the geography of Charlotte County, as well as an ability to work with the public. Petitioner is qualified for each animal control position that Mr. Larson sought to fill. However, Petitioner’s qualifications are minimal and easily bettered by other applicants. Following the May 1994 interview, Mr. Larson hired William Pahl, who was in his 20s, married, and the father of at least two young children. Mr. Pahl had already earned his animal control certificate and had worked for two years as an animal control officer in Lee County. Mr. Pahl was considerably more qualified than Petitioner. The next person whom Mr. Larson hired, instead of Petitioner, was Charles Owensby, who had a high school degree and was in his 40s. Mr. Owensby had already earned his animal control certificate and had worked for three years as an animal control officer in Lee County, ten months as a veterinary technician, and 15 years as a dog trainer. Mr. Owensby was considerably more qualified than Petitioner. The next person whom Mr. Larson hired, instead of Petitioner, was James Wilcox. Mr. Wilcox had no prior experience in animal control. He was in his mid 20s. Mr. Larson based his decision to hire Mr. Wilcox on his ability to mold him into an ideal animal control officer. The record does not reveal if a factor other than youth contributed to Mr. Larson’s determination that Mr. Wilcox could be molded into the ideal animal control officer. Mr. Wilcox had only a high school education and his work experience was unimpressive, consisting of grocery store clerk (five months), outdoor furniture assembler (11 months), short-order cook and handyman at restaurant (five months), lawn maintenance (seven months), and--most recently--handyman at a resort (10 months). Again, the record is not particularly well- developed, but Mr. Larson promoted Mr. Wilcox to Animal Control Supervisor at some point, presumably due to Mr. Wilcox’s good work. Mr. Wilcox left the Animal Control Department after two or three years to join the Charlotte County Fire Department. Mr. Wilcox was not as qualified as Petitioner for the animal control position. Petitioner had some tangentially relevant experience; Mr. Wilcox had none. Petitioner had an impressive employment history; Mr. Wilcox did not. The next person whom Mr. Larson hired, rather than Petitioner, was Cheryl Vanande. She had earned a college degree, but had no relevant experience. Ms. Vanande had worked as an energy conservation specialist for a power company (four and one- half years), yellow pages salesperson (nearly two years), and automobile sales and leasing representative (one and one-half years). While serving in the naval reserves, Ms. Vanande had supervised up to 68 persons. Also, her annual earnings had consistently been about $24,000. Ms. Vanande was married and in her 30s. Despite the lack of direct animal control experience, Ms. Vanande was probably more qualified than Petitioner. The last person whom Mr. Larson hired, instead of Petitioner, was Catherine Katzman, whom he hired after the second round of interviews in June 1995. Ms. Katzman had worked for two years at an animal shelter in Charlotte County, where her responsibilities included care for fractious animals. She had also worked for a couple of months as a veterinary technician. Ms. Katzman had earned an associate arts degree and credits in a veterinary medicine major. Ms. Katzman was in her mid 20s and married. She was considerably more qualified than Petitioner. Except for the hiring of Mr. Wilcox, the decisions to employ persons other than Petitioner were entirely justified, based upon qualifications. Ms. Vanande is a closer case, but her college degree and supervisory experience probably rendered her a superior applicant over Petitioner. In each of these cases, then, Mr. Larson’s testimony that his employment decisions were not motivated by unlawful discriminatory intent is supported by the fact that he hired persons more qualified than Petitioner. The decision to employ Mr. Wilcox, rather than Petitioner, cannot be justified based on superior qualifications. On paper, Petitioner was more qualified than Mr. Wilcox for the animal control position. If Mr. Larson had reasons, besides relative youth, to hire Mr. Wilcox, he did not articulate them at the hearing. Mr. Larson’s initial interview with Petitioner is crucial in this case. Displaying an interest in Petitioner’s age and marital status, Mr. Larson revealed the role of these criteria in his hiring decisions. This does not mean that his preferences concerning age and marital status necessarily influenced subsequent decisions. In fact, the record does not establish that any of Mr. Larson’s employment decisions in this case were influenced by marital status. As for age, the superior qualifications of all the other applicants, besides Mr. Wilcox, signifies that it was unnecessary for Mr. Larson, in hiring these four applicants, to reach the issue of age. Each of these four applicants was better qualified than Petitioner to fill the animal control position, so Mr. Larson presumably ended his considerations at this point. But Mr. Wilcox was not as qualified as Petitioner to fill the animal control position. The reasonable inference is that, in hiring Mr. Wilcox over Petitioner, Mr. Larson gave effect to the discriminatory concerns, earlier expressed during the initial interview, concerning Petitioner’s age. Specifically, solely on the basis of age, Mr. Larson doubted that Petitioner was sufficiently adaptable to acquire the skills needed for the animal control position; solely on the basis of age, Mr. Larson expected that Mr. Wilcox was sufficiently adaptable--moldable--to acquire the skills for the animal control position. Mr. Wilcox’s application bears a date of receipt of February 16, 1995. It is safe to assume that Respondent received Mr. Wilcox’s application prior to the date on which Mr. Larson hired Mr. Wilcox. Petitioner filed his Charge of Discrimination on November 21, 1995. Clearly, then, Petitioner filed his Charge of Discrimination within one year of the sole act of discrimination proved in this case. Although Petitioner relies upon evidence dating from earlier than November 21, 1994, to establish an act of age discrimination, the act of age discrimination did not take place until early 1995. Petitioner’s proof of emotional suffering is too vague and uncertain to permit an award. This claim is rejected. Petitioner’s proof of lost earnings and associated benefits is more definite, but somewhat unclear. Petitioner would have initially earned $8.12 hourly as an animal control officer, which required 40 hours weekly. Six years have elapsed since the approximate date of hire of Mr. Wilcox. The record suggests that Petitioner would have retired in 2002. It is not entirely clear when Petitioner has held various jobs since March 1, 1995. At one point, Petitioner worked for Wells Fargo at $5.15 hourly. Then, he worked at the Charlotte County courthouse at $5.75 hourly and later earned $7.00 hourly. At some point, Petitioner worked at the clerk’s office at the courthouse and earned $6.50 hourly, but was employed only 30 hours weekly. The parties should try to settle upon a specific amount representing the value of lost earnings and associated benefits, when comparing the animal control job to Petitioner’s actual employment, from March 1, 1995 (or, if available, the date of hire of Mr. Wilcox) through his age of retirement, as noted in Petitioner’s proposed recommended order, in 2002. Likewise, the parties should try to settle upon attorneys’ fees and costs. If unable to reach a settlement, the parties should request the Florida Commission on Human Relations to remand the case again to the Division of Administrative Hearings for the purpose of conducting an evidentiary hearing on the issue of the precise relief to which Petitioner is entitled.
Recommendation It is RECOMMENDED that the Florida Commission on Human Relations: Enter a final order dismissing Petitioner’s Petition for Relief on the ground that it is time-barred. If the Commission elects not to dismiss the Petition for Relief, enter a final order determining that Petitioner has proved that Respondent committed a single act of age discrimination in the decision to hire Mr. Wilcox on or about March 1, 1995, as an animal control officer. If the Commission enters a final order determining that Respondent has committed the act of discrimination described in the preceding paragraph, enter a final order giving the parties a reasonable period of time to settle Petitioner’s claims, other than emotional suffering, and, if they fail to do so, enter an order remanding the case to the Division of Administrative Hearings to conduct an evidentiary hearing solely on the issue of the relief to which Petitioner is entitled. DONE AND ENTERED this 13th day of March, 2001, in Tallahassee, Leon County, Florida. ___________________________________ ROBERT E. MEALE 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 13th day of March, 2001. COPIES FURNISHED: Dana A. Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Azizi M. Coleman, Agency Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Amy L. Sergent Lancaster & Eure, P.A. 711 North Washington Boulevard Sarasota, Florida 34236 Brendan Bradley Deputy County Attorney Charlotte County Administration Center 18500 Murdock Circle Port Charlotte, Florida 33948-1094
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).
