Findings Of Fact The Division of Pari-Mutuel Wagering of the Florida Department of Business Regulation is an agency charged with responsibility for implementation and enforcement of the statutory framework governing the conduct of pari-mutuel operations in Florida. The Division's agency head is its Director. The Division has initiated proceedings to adopt rules to establish procedures whereby dog racing tracks and jai alai frontons will select dates for matinee performances. Proposed Rule 7E-2.03 relates to the scheduling of matinee programs by dog racing tracks. It provides in pertinent part: The application [the track's application for an annual license, operating dates, meetings and the number of performances] shall designate the matinee programs to be conducted by the association. Each association shall be permitted during its authorized meeting to conduct a maximum of 54 matinee programs on the days of its choice. Provided, however, that no association located in a county where there is a thoroughbred association or within a radius of 35 miles of another pari-mutuel association shall be permitted to conduct more than 3 matinee programs during any calendar week of its authorized meeting, except that a matinee program can be scheduled on New Year's Day, Memorial Day, July 4th, Labor Day and Thanksgiving Day. Provided, further, that in those counties where a thoroughbred association is authorized to have dark during its meeting all other pari-mutuel associations in the same county may conduct their matinee programs on any or all such dark days as long as the total for the respective association does not exceed 54 matinee programs. Proposed Rule 7E-3.03(32) relates to selection of matinee dates by jai alai frontons, and contains language that is functionally identical to Proposed Rule 7E-2.03. The effect of these proposed rules would be to allow dog racing tracks and jai alai frontons to schedule up to fifty-four matinee programs during their authorized operating dates. If the track or fronton is located in a county where there is a horse racetrack, no more than three matinee programs can be scheduled during any calendar week, except for the designated holidays. The Respondent conducted a public hearing with respect to the proposed rules on January 19, 1981. The Petitioners, Calder Race Course, Inc., and Tropical Park, Inc.; and the Intervenors Gulfstream Park Racing Association and Hialeah, Inc., are horse racetrack operators. These parties are affected by the proposed rules because the proposed rules would allow dog racing tracks and jai alai frontons to operate matinee programs at the same time that horse race programs are being run by these parties. The Intervenors WJA Realty; Biscayne Kennel Club, et al.; and St. Petersburg Kennel Club are operators of dog racing tracks or jai alai frontons. They are affected by the proposed rules because the proposed rules would allow dog racing tracks and jai alai frontons to operate matinee programs at the same time that horse race programs are being run by these parties. The horse racetrack parties are located in Dade County or Broward County, Florida. They conduct only daytime, matinee programs. The dog track and jai alai fronton parties, other than St. Petersburg Kennel Club, Inc., operate in Dade County and Broward County, Florida. They are all located within a radius of thirty-five miles of other pari-mutuel associations, and in the same county with thoroughbred associations. Prior to 1970, dog tracks and jai alai frontons in Southeast Florida conducted nighttime programs almost exclusively. Horse track operators conducted, and continue to conduct, only matinee programs. During the decade of the 1970's, dog tracks and jai alai frontons began conducting an increasing number of matinee programs under various regulatory systems imposed by the Division of Pari-Mutuel Wagering, or its predecessors. In 1978 the Division adopted a policy which is in all material respects identical to the policy that the Division is seeking to implement through the adopting of the rules which are the subject of this proceeding. While it appears to have been the Division's intent to adopt the policy as a rule in 1978, the policy was never formally filed with the Office of the Secretary of State, and was therefore not adopted as a rule. It has, nonetheless, been in operational effect since 1978. The Division's experience with the policy has been favorable. Dog track and jai alai fronton operators have chosen days for operating matinee programs which are most profitable. The State obtains revenue from these operations based upon a percentage of the "handle" or the dollar volume that goes through a facility on a given day. The more money an operation takes in, the more revenue the State obtains. The State's experience with the matinee policy has been favorable from a revenue generating perspective. Horse track operators are to some degree affected by having dog tracks and jai alai frontons operating conflicting matinee programs. The degree of this effect has not been established with any precision. Horse track operators have experienced operational difficulties during the past decade. Many factors have contributed to these difficulties. It has not been established that having matinee competition from dog tracks and jai alai frontons has been a significant factor. Various statistics were presented by the parties in an effort to show either that matinee competition has resulted in a diminution of the handle of horse racetracks, or the contrary. The statistics were not prepared in such a manner as to isolate the impact of matinee competition upon the revenues of horse racetracks. Even if any such findings could be isolated from the statistics that have been presented, the conclusions would be conflicting. Certainly having competition drains some customers from horse racetracks. The extent of this impact cannot, however, be determined from the evidence presented in this proceeding.
The Issue Whether Respondent, Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering (“Division”), relied on an unadopted rule when it issued a 2016-2017 annual operating license and cardroom license to the South Florida Racing Association, LLC, d/b/a Hialeah Park (“Hialeah”), and continued to authorize slot machine operations at Hialeah beyond June 30, 2016.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing and the entire record in this proceeding, including the parties’ Joint Prehearing Stipulation, the following Findings of Fact are made: The FQHRA is a Florida not-for-profit corporation located in Tallahassee. It comprises members in good standing of its parent organization, the American Quarter Horse Association. The FQHRA describes its mission as promoting the owning, breeding, and racing of Florida-bred quarter horses. The FQHRA represents 602 breeders, owners, and trainers of quarter horses, many of whom have participated in the annual quarter horse meet at Hialeah Park. During the 2015-2016 racing season, 535 members of the FQHRA participated at Hialeah Park in a full schedule of live racing. The FQHRA is named specifically in statutes related to quarter horse racing in Florida. It is the statutory “default” horsemen’s association for purposes of setting the schedule of racing at quarter horse racetracks and representing quarter horse owners in negotiating purse agreements with quarter horse permitholders pursuant to sections 550.002(11), 551.104(10)(a)2. and 849.086(13)(d), Florida Statutes. Hialeah is the holder of a horse racing permit that authorizes it to conduct quarter horse racing at its facility, Hialeah Park, in Miami-Dade County, Florida. The Division is the state agency responsible for implementing and enforcing Florida’s pari-mutuel laws, including the licensing and regulation of all pari-mutuel activities conducted in the state. The Division’s regulatory duties include the adoption of “reasonable rules for the control, supervision, and direction of all applicants, permittees, and licensees and for the holding, conducting, and operating of all racetracks, race meets, and races held in this state.” § 550.0251(3), Fla. Stat. Gambling is generally prohibited under Florida law. See chapter 849, Florida Statutes, establishing criminal penalties for many forms of gambling.1/ However, certain types of pari-mutuel activities, including wagering on horse racing, have been authorized. In recent years, the Legislature has expanded the gambling activities that may occur at the facilities of licensed pari-mutuel permitholders by authorizing the operation of slot machines and cardrooms at pari-mutuel facilities. These operations are conditioned upon licensing requirements that include having a “binding written agreement” with the FQHRA or “the association representing a majority of the horse owners and trainers at the applicant’s eligible facility” as to the payment of purses on live quarter horse racing conducted at the facility. §§ 551.104(10)(a)2. and 849.086(13)(d)3., Fla. Stat. These conditions are commonly referenced as “coupling” the expanded gambling operations with the promotion of horse racing in the state. The Legislature has enacted specific conditions to be met by applicants for slot machine and cardroom licenses to ensure that coupling occurs. Section 551.104, the slot machine licensing statute, sets forth conditions specific to thoroughbred racing and similar conditions specific to quarter horse racing. For purposes of this proceeding, the quarter horse provision at subsection (10)(a)2. is relevant: No slot machine license or renewal thereof shall be issued to an applicant holding a permit under chapter 550 to conduct pari- mutuel wagering meets of quarter horse racing unless the applicant has on file with the division a binding written agreement between the applicant and the Florida Quarter Horse Racing Association or the association representing a majority of the horse owners and trainers at the applicant’s eligible facility, governing the payment of purses on live quarter horse races conducted at the licensee’s pari-mutuel facility. The agreement governing purses may direct the payment of such purses from revenues generated by any wagering or gaming the applicant is authorized to conduct under Florida law. All purses shall be subject to the terms of chapter 550. Section 849.086(13)(d)3. contains a virtually identical condition for a quarter horse racing permitholder seeking to operate a cardroom at its facility: No cardroom license or renewal thereof shall be issued to an applicant holding a permit under chapter 550 to conduct pari-mutuel wagering meets of quarter horse racing unless the applicant has on file with the division a binding written agreement between the applicant and the Florida Quarter Horse Racing Association or the association representing a majority of the horse owners and trainers at the applicant’s eligible facility, governing the payment of purses on live quarter horse races conducted at the licensee’s pari-mutuel facility. The agreement governing purses may direct the payment of such purses from revenues generated by any wagering or gaming the applicant is authorized to conduct under Florida law. All purses shall be subject to the terms of chapter 550. Once a track obtains its initial permit from the Division to conduct a particular type of pari-mutuel wagering, it must thereafter apply annually to the Division and obtain a license to conduct pari-mutuel operations. The license authorizes the track to conduct pari-mutuel wagering performances under its permit on the specific dates identified on the license. A permitholder must file its application between December 15 and January 4, for a license to conduct performances during the next state fiscal year, i.e., July 1 through June 30. The permitholder is entitled to amend its application through February 28. § 550.01215(1), Fla. Stat. The Division is also responsible for issuing licenses for cardroom gaming at a licensed pari-mutuel permitholder's facility. "A cardroom license may only be issued to a licensed pari-mutuel permitholder and an authorized cardroom may only be operated at the same facility at which the permitholder is authorized under its valid pari-mutuel wagering permit to conduct pari-mutuel wagering activities." § 849.086(5)(a), Fla. Stat. After initial issuance, a cardroom operator must apply annually for renewal of its cardroom license, which must be submitted in conjunction with the annual application for the pari-mutuel license. § 849.086(5)(b), Fla. Stat. To maintain its eligibility to operate cardrooms, the licensee must: [h]ave requested, as part of its pari-mutuel annual license application, to conduct at least 90 percent of the total number of live performances conducted by such permitholder during either the state fiscal year in which its initial cardroom license was issued or the state fiscal year immediately prior thereto if the permitholder ran at least a full schedule of live racing or games in the prior year. § 849.086(5)(b), Fla. Stat. The Division is also responsible for authorizing slot machine operations through the issuance of annual licenses pursuant to sections 551.104 and 551.105. As with cardrooms, slot machines may only be operated at a permitholder's eligible facility identified in a valid pari-mutuel wagering permit. § 551.104(3), Fla. Stat. As a condition of licensure, the slot machine licensee must conduct "no fewer [sic] than a full schedule of live racing or games as defined in s. 550.002(11)." § 551.104(4)(c), Fla. Stat. Section 550.002(11) sets forth the definition of “full schedule of live racing or games.” As to quarter horse permitholders, the definition provides, in relevant part: “Full schedule of live racing or games” means . . . for a quarter horse permitholder at its facility unless an alternative schedule of at least 20 live regular wagering performances is agreed upon by the permitholder and either the Florida Quarter Horse Racing Association or the horsemen’s association representing the majority of the quarter horse owners and trainers at the facility and filed with the division along with its annual date application . . . for every fiscal year after the 2012-2013 fiscal year, the conduct of at least 40 live regular wagering performances. Hialeah began quarter horse racing in 2009, partnering with the FQHRA to obtain initial approval from the Division to operate slot machines at the Hialeah Park facility. The FQHRA provided the horses and trainers needed by Hialeah to conduct two quarter horse race meets, one at the end of 2009 and one at the beginning of 2010. These race meets were timed to meet the definition of “eligible facility” set forth in section 551.102(4), which provides in relevant part that a licensed pari-mutuel facility may apply for a slot machine license “provided such facility has conducted live racing for 2 consecutive calendar years immediately preceding its application.” Hialeah and FQHRA entered into exclusive horsemen's agreements,2/ hereinafter referred to collectively as the “FQHRA Agreement,” to govern the payment of purses on live quarter horse races conducted at Hialeah's pari-mutuel facility for the 2009-2010 racing season through the 2015-2016 racing season. The FQHRA Agreement was valid through June 30, 2016. The last quarter horse race at Hialeah for the 2015-2016 season was February 29, 2016. As noted above, section 550.01215(1) requires a pari- mutuel permitholder to file its license renewal application between December 15 and January 4 for the next state fiscal year, and permits the applicant to amend its application through February 28. Section 550.01215(2) requires the Division to issue the license no later than March 15. Cardroom licenses must also be renewed annually, in conjunction with the applicant’s annual application for its pari-mutuel license. § 849.086(5)(b), Fla. Stat. Slot machine licenses are valid for one year and must be renewed annually. § 551.105(1), Fla. Stat. Hialeah’s most recent slot machine license was issued on December 11, 2015. In September 2015, it was apparent that Hialeah might be looking for options other than entering into a horsemen’s agreement with the FQHRA for the 2016-2017 season. On or about September 15, 2015, Hialeah's legal counsel, Andrew Lavin, met with Jonathan Zachem, then the director of the Division, and Jason Maine, legal counsel for the Division, to discuss several issues, including the upcoming application process. In a follow-up letter to Mr. Maine and Mr. Zachem, Mr. Lavin wrote: During our meeting you confirmed that the Division has on file SFRA's purse agreement with the Florida Quarter Horse Racing Association, which expires on June 30, 2016 (the "SFRA/FQHRA Agreement"). You also confirmed that the SFRA/FQHRA Agreement serves as the requisite agreement for SFRA's applications for its upcoming slots license and cardroom license. SFRA shall file its application accordingly. You further explained that it is the Division's position that by the expiration date of the SFRA/FQHRA Agreement, SFRA is required to have a new agreement on file with the Division that is effective as of July 1, 2016, and that meets the requirements of § 551.104(10)(a)(2), Fla. Stat., and § 849.086(13)(d)(3), Fla. Stat. Mr. Zachem confirmed that the meeting occurred and did not dispute the substance of Mr. Lavin’s letter. Representatives of the FQHRA met independently with the Division's leadership, including Jonathan Zachem and Jason Maine, in mid-September 2015, to discuss FQHRA's concerns with respect to Hialeah's license applications and the negotiations with Hialeah for a new horsemen's agreement for the 2016-2017 fiscal year. FQHRA came away from this meeting with the understanding that the Division would rely on the FQHRA Agreement to allow Hialeah to continue slot machine operations until the agreement expired on June 30, 2016, and that a new horsemen’s agreement would have to be in place for Hialeah to renew its cardroom license. Hialeah received a renewal of its slot machine license on December 11, 2015. In issuing this license, the Division relied on the FQHRA Agreement that would expire on June 30, 2016. Hialeah electronically submitted its application for its 2016-2017 racing license and cardroom gaming license on December 23, 2015. On February 26, 2016, Hialeah electronically submitted an amended application for its annual racing license. At the time of Hialeah’s applications for its 2016-2017 racing and cardroom licenses, the FQHRA Agreement was the only purse agreement in the Division’s files for Hialeah. In its December 2015 filings, Hialeah requested a full schedule of live racing and renewal of its cardroom gaming license for the 2016-2017 race year. A "full schedule of live racing" for the 2016-2017 quarter horse meet at Hialeah Park would be 40 live regular wagering performances, absent an alternative schedule agreed to by Hialeah and either the FQHRA or the horsemen's association representing the majority of the owners and trainers at Hialeah. Jamie Pouncey is the Division employee responsible for reviewing license applications for completeness. Ms. Pouncey has no authority to approve or reject license applications. Only the Division director has approval authority. Ms. Pouncey testified that having a valid horsemen’s agreement on file is a requirement for purposes of processing the cardroom application and for issuing the operating license. In reviewing Hialeah’s racing license application, Ms. Pouncey utilized a Division checklist that enumerated the necessary forms and other requirements. One of the items on that checklist stated: “a copy of the binding written agreements between the facility and respective associations (horsemen’s agreement) as required by section 849.086(13)(d)(3), Florida Statutes (Quarter Horse Only).” Ms. Pouncey marked the checklist to indicate that Hialeah met this requirement. In so doing, Ms. Pouncey relied on the FQHRA Agreement, which remained valid until June 30, 2016. On February 25, 2016, Dr. Steven Fisch, a former president and current board member of the FQHRA, sent an email to Ms. Pouncey inquiring whether Hialeah had applied for its 2016-2017 quarter horse racing license and whether it had submitted a horsemen's agreement. Ms. Pouncey responded that "there is one on file valid through 06/30/2016," and later confirmed to Dr. Fisch that the FQHRA Agreement was the only one on file for Hialeah at that time. On February 26, 2016, Hialeah electronically transmitted its amended racing license application to the Division. The amended application requested to run a reduced schedule of 36 performances instead of the full schedule of 40 requested in the December 2015 filing. At the time the amended application was filed, the only horsemen’s agreement on file at the Division for Hialeah remained the FQHRA Agreement, which included no deviation from the 40-performance schedule. On March 8, 2016, Ms. Pouncey indicated on the Division's checklist that Hialeah's amended application for a racing license and its application for a cardroom gaming license were complete, with all the necessary documentation in place. She forwarded Hialeah's renewal applications to Mr. Zachem, along with draft licenses for his signature. Ms. Pouncey testified that in her application review, she does not look at the issue of whether the applicant is requesting less than a full schedule of live racing dates. She had no specific recollection of whether Hialeah requested less than a full schedule. She made no assessment of whether 36 dates constitutes less than a full schedule. Ms. Pouncey testified that she would “consult management” if the issue arose during her application review, but stated that she did not do so regarding Hialeah’s application. On March 15, 2016, Hialeah electronically submitted to the Division a horsemen’s agreement between Hialeah and the SFQHA (the “SFQHA Agreement”). It represented that the SFQHA would be the horsemen’s association representing the majority of the horsemen at Hialeah Park effective July 1, 2016. Also on March 15, 2016, the SFQHA’s articles of incorporation were filed with the Secretary of State. Regarding who would represent the majority of the horsemen at Hialeah, the preamble of the SFQHA Agreement states: WHEREAS, because only horses owned by members of SFQHA will be eligible to participate in races during the race meet, the SFQHA is the horsemen's association that represents all of the horse owners and trainers at SFRA's facility who will participate in the live quarter horse events that will be conducted by Hialeah at Hialeah Park during the race meet to which this Agreement is applicable. The substance of the SFQHA Agreement elaborates as follows: 13. For and in consideration of the purse payments that Hialeah has agreed to make as provided in paragraph 4 above, Hialeah agrees that it will accept entries during the Race Meet only from owners and/or trainers: (a) that appear on the membership roll of the SFQHA as a member in good standing; and (b) that have on file with Hialeah a photocopy of an executed original “Pledge Card” in the form attached as Exhibit A whereby said owner and/or trainer has appointed the SFQHA to represent said owner and/or trainer for the purposes stated in § 550.002(11); § 551.104(10); § 849.086(13); and the IHA [Interstate Horseracing Act of 1978]. The SFQHA shall maintain up to date membership information that it will provide to Hialeah in order for Hialeah to comply with the requirements of this paragraph. Furthermore, Hialeah and the SFQHA agree that all entries shall be horses from qualifying breeds that have either been bred in the State of Florida or have been permanently based in the State of Florida during the calendar year preceding the day on which the horse is entered to race at Hialeah Park. No exceptions will be granted to the requirements of this paragraph. Regarding whether Hialeah would be required to run a full schedule of 40 performances during the racing season, the SFQHA Agreement states: 3. The parties agree that Hialeah has the managerial prerogative to determine the dates and the number of operating performances for which Hialeah shall seek authorization when filing an application for an operating license. * * * 12. The SFQHA hereby authorizes Hialeah to file this Agreement with the Division evidencing compliance by Hialeah with the provisions of Chapters 550, 551 and 849 that require the filing of this Agreement with the Division of Pari-Mutuel Wagering as a condition precedent to annual operating, cardroom and/or slot machine licensure. Specifically with regard to the number of performances that Hialeah shall operate, the SFQHA hereby provides the consent required by § 550.002(11) to authorize Hialeah to operate 36 performances during the Race Meet. The authorizations, approvals and consents set forth in this Agreement shall remain in full force and effect through June 30, 2017. On March 15, 2016, the Division issued to Hialeah a permit to conduct quarter horse racing at Hialeah Park for the fiscal year 2016-2017. The license, signed by Mr. Zachem as director of the Division, authorized 36 regular performances, as requested by Hialeah’s amended application. The FQHRA contends that the Division's issuance of licenses to Hialeah is based on a new, unpromulgated policy that allows pari-mutuel permitholders to unilaterally control racing dates and purse decisions without the involvement of an independent horsemen's association. The FQHRA also alleges that the Division is operating pursuant to a new, unpromulgated policy of allowing amendments to license applications after February 28 of a given year. The FQHRA urges the conclusion that the Division's issuance of licenses to Hialeah represents a new policy and/or interpretation of the statutory requirements that have not been promulgated as required by chapter 120, Florida Statutes. The FQHRA alleges that the Division's actions and new interpretations effectively authorize "decoupling" by allowing pari-mutuel permitholders to unilaterally control racing dates and purse agreements. The FHQRA presented extensive testimony regarding the Legislature’s intent when it established the requirement of a horsemen’s agreement between a permitholder and a horsemen’s association as a condition of licensure to operate slot machines or cardrooms, and the need for arm’s length negotiations in establishing those agreements. Dr. Fisch was involved in the effort in the late 1990s and early 2000s to found the FQHRA and re-establish quarter horse racing in Florida. He testified that an independent horsemen's association, genuinely representing the interests of the horsemen in negotiations with the permitholder, is necessary to promote the stability of the industry. The purse payments from the track must be sufficient to entice the horsemen, who incur substantial expenses, to provide horses for the races. A single race meet can result in the horsemen collectively investing millions of dollars. Dr. Fisch stated that fewer horsemen will race and enter into the horse racing industry if horsemen are excluded from purse negotiations and the number of races is arbitrarily reduced. Racing and its purse payments drive the horse breeding industry, which is important to the economy of the state. Dr. Fisch testified that if the horsemen's association is not independent from the track, then the track can dictate the purse payments and racing dates without input from the horsemen, a situation contrary to the intent and purpose of coupling expanded gaming opportunities with the continued healthy operation of horse racing. Dr. Fisch testified that the FQHRA offers membership to any owner or trainer racing at Hialeah Park. The FQHRA issues membership cards stating that the member has chosen FQHRA to represent him in track negotiations and legislative endeavors. Membership can be obtained online, and is renewed automatically every year. Dr. Fisch stated that people may opt out of membership in the FQHRA and still race at the facility. The FQHRA contends that the SFQHA is a sham organization established and controlled by Hialeah as a means to effectively skirt the coupling requirement of the relevant statutes. At the hearing, it was established that the SFQHA had no members as of March 14, 2016, the date on which the SFQHA Agreement was submitted to the Division, or as of March 15, 2016, the date the racing and cardroom licenses were issued. In deposition testimony, Wesley Cox, a founding board member of the SFQHA (since resigned), testified that the SFQHA had no signed pledge cards from members as of September 20, 2016. The FQHRA asserts that, as of the dates of the SFQHA Agreement and Hialeah’s license issuance, it was the only horsemen’s association representing a majority of the owners and trainers at Hialeah, by virtue of the ongoing FQHRA Agreement. Therefore, the FQHRA was the only entity authorized to enter a valid horsemen’s agreement with Hialeah. The FQHRA points out that the Division was presented with plentiful reasons to inquire whether the SFQHA was a “captive” association created by Hialeah. Even though both Hialeah and the FQHRA had made several inquiries to the Division regarding the license renewal requirements and the recognized horsemen's association for Hialeah, the Division made no effort to establish whether the SFQHA actually represented a majority of the owners and trainers at Hialeah at the time the SFQHA Agreement was submitted on March 15, 2016. The Division’s position is that the date of Hialeah’s license issuance was the correct time to ascertain which horsemen’s association represented a majority of the owners and trainers at Hialeah Park, because no racing was occurring at that time. There were no owners or trainers at Hialeah Park as of March 15, 2016. When asked whether the Division checked for SFQHA membership cards upon receiving the SFQHA Agreement, Mr. Zachem stated that “it wouldn’t have been possible yet” because Hialeah had not “had performances since [the filing of the SFQHA Agreement] for us to be able to.” The Division reads the language of sections 551.104(10)(a)2 and 849.086(13)(d)3. in literal terms: a “binding written agreement between the applicant and the [FQHRA] or the association representing a majority of the horse owners and trainers at the applicant’s eligible facility” must be “on file with the division” at the time the license is issued. At all times pertinent to this proceeding, there was a binding written agreement on file with the Division: the FQHRA Agreement that expired on June 30, 2016, and the SFQHA Agreement that commenced on July 1, 2016. The Division’s position is that the agreement in effect at the time the license is issued need not be the same agreement that will be in effect at the time the race meet is underway. Nothing in the statutes gainsays the Division’s position. The Division has not here acted according to an unadopted rule but pursuant to the language found on the face of the statute. No new policy has been announced, no interpretation was necessary. The only novel aspect of this licensing determination is that Hialeah has changed horsemen’s associations, an event clearly contemplated by sections 551.104(10)(a)2. and 849.086(13)(d)3. The FQHRA’s position is that Hialeah should be required to run its 2016-2017 race meet using the horsemen’s association with which it had an agreement on file with the Division at the time of the application. In other words, Hialeah has no alternative but to enter a new horsemen’s agreement with the FQHRA, using the slot machine statute’s arbitration process if necessary. See § 551.104(10)(c), Fla. Stat. Acceptance of the FQHRA’s position would make it difficult, if not impossible, for a quarter horse permitholder to ever dislodge an incumbent horsemen’s association. The statutes’ provision of alternatives--“the Florida Quarter Horse Racing Association or the association representing a majority of the horse owners and trainers at the applicant’s eligible facility”--militates against the FQHRA’s position.3/ The Division concedes that FQHRA’s points regarding legislative intent and the need for an independent horsemen’s association may be valid as matters of policy. However, the Division argues that the statutes give it no authority to determine which is a “legitimate” and which is a “sham” or “puppet” horsemen’s association. The term “horsemen’s association” is undefined in statute. The Division’s position is that if it has on file a facially valid and binding horsemen’s agreement, the Division lacks any statutory ground not to issue the license. Both Dr. Fisch and William White, the president of the Florida Horsemen’s Benevolent and Protective Association, Inc. (“FHBPA”)(a thoroughbred horsemen’s association recognized in the slot machine statute, see § 551.104(10)(a), Fla. Stat.), repeatedly referred to the need for “legitimate” horsemen’s associations in the pari-mutuel industry. Mr. White defined a “legitimate” horsemen’s association as one that “can prove it’s the majority.” This statement led to the following colloquy with counsel for the Division, illustrating the difficulty of proving who is “legitimate”: Q. Okay. What about a situation like Dr. Fisch described, where not every member has cards? A. If you get proved as the majority, you wouldn't have to have everyone have the card. Q. How is that? A. Well, if you have 1,000 members and you have 600 cards, you're the majority. Q. Okay. But how do I know -- if you only have 600 cards, how do I know you've got 1,000 members? A. Well, in our particular case, our membership is anyone who has an owners or trainers license. Q. Sure. A. So if I have cards that are more than half of that number, then I've proven to you that we're the majority. Q. You understand we're not talking about your organization, though, right? A. Yes. Q. So talking about the quarter horse association, who, all members we've heard, do not have cards, how are we to know how many members they have? A. Well, how much time did you put into it to find out the answer to that question? Q. I think you misunderstand. You need to answer the question, not ask me questions. A. I cannot answer it because I do not know your effort that you put into it. Q. I'm asking how could we. A. Get on the phone and write some letters. Send some investigators out there, do some work. Q. To people who don't have cards? A. To get a pulse on what's going on out there. Q. Okay. And how would you suggest we get said pulse? A. It's--I'll give you the answer you guys usually give me. Q. Okay. A. It's not my job to tell you what to do. The FQHRA insists that the Division has a duty to investigate the organization and membership of a horsemen’s association prior to issuing a license based on an agreement between the association and a permitholder, and that its failure to do so in this instance constitutes a change in policy. This insistence is based on the FQHRA’s reading of In re: Petition for Declaratory Statement of Florida Horsemen’s Benevolent & Protective Association, Inc., Case No. DS 99-025 (Mar. 22, 2000), issued by the Division in response to a request by the FHBPA, which sought a declaratory statement on how the Division “determines how a horsemen’s group, such as Petitioner, is ‘the horsemen’s group representing a majority of thoroughbred race horse owners and trainers in this state’ within the meaning of Section 550.3551(6)(a), Florida Statutes.” The FQHRA asserts that the declaratory statement “declared that a new horsemen’s association seeking to represent the majority of the horsemen at a facility to replace an existing representative group must demonstrate support through the presentation of membership cards evidencing that the new group actually represents the majority of the horsemen.” However, it is clear from the language of the declaratory statement that the Division was not declaring a general intent or duty on its part to investigate a new horsemen’s association prior to issuance of a license, or stating a specific requirement that membership cards be presented as proof. Rather, the Division was placing the onus on the permitholder to ensure that the horsemen’s group represents a majority of licensees: Recognizing that the state may impose penalties against the permitholder for violations of section 550.3551, Florida Statutes, the permitholder should make every reasonable means [sic] to verify that the horsemen’s group represents the majority of licensees.[4/] It is a reasonable summation that to determine which (if more than one horsemen’s group representing thoroughbred horserace owners and trainers exist) of the horsemen’s groups represent the majority of the thoroughbred horserace owners and trainers, one must examine the membership roster of each association. Signed enrollment cards should substantiate membership rosters. The permitholder should also receive confirmation that the membership roster is comprised of licensed thoroughbred racehorse owners or trainers maintaining a “current” status in contrast to an “expired” status. The membership roster must then be compared to the total number of licensed thoroughbred racehorse owners and trainers in the state on that race day. While section 550.2614(2), Florida Statutes, may have provided a mandatory verification process for the horsemen’s association to certify that it represented a majority of the owners and trainers of thoroughbred horses in the state, the Court in Florida Horsemen Benevolent & Protective Association v. Rudder, 738 So. 2d 449 (Fla. 1st DCA 1999), ruled all of section 550.2614, Florida Statutes, unconstitutional. Nevertheless, said ruling does not prohibit the permitholder from seeking verification, independently from the statute, from the horsemen’s groups. Such verification may be accomplished by several means, one [of] which may include state verification of the number of current licensed thoroughbred racehorse owners and trainers, supplemented by an affidavit by the horsemen’s association that it represents a majority of those licensees.[5/] The Division believes that the methodology outlined above is consistent with the legislative intent that the permitholder seek approval of the majority represented for holding less than eight live races on any race day. The Division’s actions in the instant case were not inconsistent with the declaratory statement as to the nature of the horsemen’s association. In the instant case, Hialeah submitted a horsemen’s agreement that on its face appeared to be valid and binding. The Division accepted Hialeah’s implicit representation that it had used all reasonable means to verify that the SFQHA represented (or would represent, at the time the new agreement took effect) a majority of the quarter horse owners and trainers at Hialeah Park. At the hearing, the Division stated that Hialeah’s representations could not be verified until the race meet begins. If events prove that the SFQHA does not represent a majority of the owners and trainers at Hialeah Park, then Hialeah will be subject to the disciplinary measures set forth in sections 551.014(10)(b) and 849.086(14). In the declaratory statement and in the instant case, the Division was consistent in claiming no duty or authority to investigate or take action against the permitholder prior to issuance of a license. The FQHRA also contends that the Division’s allowance of amendments to Hialeah’s application after February 28 constituted an unadopted rule. The Division counters that the filing of the SFQHA Agreement on March 14, 2016, was not an amendment of Hialeah’s application. Consistent with its position that the statute requires only that an agreement must be on file with the Division at the time an application is filed, and with the fact that the application form completed by the permitholder makes no reference to a horsemen’s agreement, the Division states that the agreement itself is not a part of the application. So far as this goes, the Division’s view is consistent with the statutes, none of which impose any deadline on the filing of a new horsemen’s agreement to take effect upon the expiration of the horsemen’s agreement already on file with the Division. However, the statutes in fact contemplate two agreements between the permitholder and a horsemen’s association. First, there is the mandatory “binding written agreement” regarding distribution of purses, for which the statutes provide no filing deadline. Second, there is the permissive agreement between the permitholder and the horsemen’s association regarding a reduction in the “full schedule of live racing” as defined by section 550.002(11). If the facility intends to run the full schedule of 40 racing performances, there is no need to file this agreement.6/ However, this second agreement does have a statutory deadline: it must be “filed with the division along with [the permitholder’s] annual date application.” This agreement is, in effect, part of the application if the permitholder is seeking approval of a reduced schedule for purposes of the cardroom and slot machine licensing requirements. The Division neglected to account for this deadline in concluding that Hialeah did not amend its application after February 28. Hialeah’s initial race dates and cardroom license application, filed December 23, 2015, requested a full schedule of 40 performances. Hialeah’s amended application, dated February 26, 2016, requested 36 performances, fewer than the statutory “full schedule” of 40. As of the application amendment deadline of February 28, 2016, Hialeah had not filed an agreement with any horsemen’s association for an “alternative schedule” reducing the statutory number of performances. Hialeah made such a filing only on March 15, 2016, when it submitted the SFQHA Agreement, which purported to “authorize Hialeah to operate 36 performances during the Race Meet” and generally consent to Hialeah’s “managerial prerogative” in determining the number of racing dates. The Division’s approval of Hialeah’s reduced operating schedule could only have been premised upon the SFQHA Agreement, which was not filed “along with . . . the annual date application,” even though in this respect it was part of the application. For purposes of the cardroom and slot machine license statutes, it is immaterial when the purse agreement has been filed so long as there is a valid agreement on file at the time the license is issued. Mr. Zachem accurately stated that the Division has no way of knowing whether the SFQHA is the majority horsemen’s association at Hialeah Park until the 2016-2017 race meet commences. The Division accepted the SFQHA Agreement on the premise that the SFQHA would represent, at the time of the race meet, a majority of the quarter horse owners and trainers at Hialeah Park, and that Hialeah would be subject to discipline against its license should that not come to pass. As to the purse agreement, the Division’s actions did not constitute an unadopted rule but a straightforward application of statutory language. However, the timing of the filing of the alternative schedule agreement is decisive. The deadline for filing the racing dates application was February 28, 2016. As of that date, the Division did know which horsemen’s association represented a majority of the owners and trainers at Hialeah Park because the 2015-2016 racing meet did not conclude until the following day, February 29, 2016. As of the filing deadline, the FQHRA was indisputably the majority horsemen’s association. As of the filing deadline, the SFQHA did not exist, even on paper. As of the filing deadline, no alternative schedule agreement had been filed with the Division.7/ Therefore, the Division’s action in approving Hialeah’s operating dates and cardroom licenses constituted either a waiver of the statutory deadline of February 28 for the filing of application amendments, or a waiver of the statutory requirement that a permitholder file an alternative schedule agreement in order to receive a license to run fewer than 40 live regular wagering performances. Such a waiver would perforce be generally applicable to any similarly situated applicant. The Division’s action in this respect constitutes an unadopted rule.
The Issue Whether the Order of Summary Suspension of Respondent's license as a greyhound trainer filed September 20, 2002, is appropriate.
Findings Of Fact The Department presented the laboratory reports from the University of Florida, College of Veterinary Medicine, Racing Laboratory, showing positive test results in seven samples for Benzoylecgonine, a metabolite of cocaine. Cocaine is a topical anesthetic and a Class 1 drug. The Benzoylecgonine was found in the following samples: 865286, 865667, 865724, 865725, 889275, 889359, and 889492. The Department presented documentation establishing that all the samples were taken from greyhounds that raced at Naples-Fort Myers Greyhound Track, identified as Track 142. Petrillo was the trainer for the greyhounds at the time the samples were taken and, as the owner's witness, witnessed the taking of the samples after each greyhound had completed its race. Petrillo was issued a greyhound trainer's license, number 1558181, by the Department on May 4, 2002. Petrillo denied that he administered the drug to the animals. According to his testimony, others may have had access to the greyhounds prior to the races in which the dogs participated.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered continuing the summary suspension of Steven M. Petrillo's license until the entry of a final order on the pending administrative complaints. DONE AND ENTERED this 18th day of October, 2002, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (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 18th day of October, 2002. COPIES FURNISHED: Joseph M. Helton, Jr., Esquire Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-2202 Steven M. Petrillo 17401 Butler Road Fort Myers, Florida 33912 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202 David J. Roberts, Director Division of Pari-Mutuel Wagering Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether Respondent committed the offenses alleged in the Amended Administrative Complaint and the penalties, if any, that should be imposed.
Findings Of Fact Respondent is a veterinarian licensed in the State of Florida. On October 8, 1990, Respondent received pari-mutuel wagering occupational license number 0364610-1046 from the Petitioner. Respondent held this pari-mutuel wagering occupational license at all times pertinent to this proceeding. Petitioner is the State agency responsible for the regulation of the horse racing industry in the State of Florida. At all times pertinent to this proceeding, Respondent worked as a racetrack veterinarian at Pompano Harness Track (Pompano Track) in Pompano Beach, Florida. James Gabriel is a sixteen year veteran of the Fort Lauderdale, Florida, Police Department. During the latter part of 1992, Officer Gabriel began an undercover investigation at Pompano Track as part of his duties with the Metropolitan Organized Crime Intelligence Unit. Officer Gabriel posed as a convicted felon who was the owner of the horse Yankee Roughneck. Horse owner Herman Berger registered Yankee Roughneck in his (Berger's) name since as a convicted felon, Officer Gabriel's undercover persona would not be allowed to register as the true owner. Mr. Berger was a target of Officer Gabriel's undercover investigation and did not know that Officer Gabriel was in fact a police officer. Officer Gabriel and Mr. Berger were in contact with one another on almost a daily basis between November 1992 and May 1993. Mr. Berger owned the horse You've Got The Time. Officer Gabriel's undercover investigation lasted approximately one year and was electronically monitored so that conversations in which Officer Gabriel was a part were tape recorded without the knowledge of the other participants in the conversation. At all times pertinent to this proceeding, Yankee Roughneck and You've Got The Time were standard bred horses that raced at Pompano Track. On the morning of May 24, 1993, Officer Gabriel met with Mr. Berger and discussed having Respondent give Yankee Roughneck a substance to make him run faster. Mr. Berger referred to the substance to be given to Yankee Roughneck as being a "malt". A malt is also known as a "milkshake" and as an "ionic boost". Later that same day Officer Gabriel came into contact with Respondent when Respondent arrived at Pompano Track at the stable of Charlie Giamanco, the trainer of Yankee Roughneck. Respondent was at the stable to treat Yankee Roughneck for an injury that occurred when the rail of a jog cart broke and a splinter stabbed Yankee Roughneck in the shoulder. Officer Gabriel was in the presence of Mr. Berger and Mr. Giamanco when Respondent arrived at the stable. Respondent did not know Officer Gabriel, but he knew that Officer Gabriel was a colleague of Mr. Berger. Officer Gabriel engaged in a conversation with Respondent which was electronically monitored by equipment in good working order. The following conversation among Respondent (P.P.), Officer Gabriel (J.G.), Mr. Berger (H.B.), and Mr. Giamanco (C.G.) was taped. This conversation pertains to racing Yankee Roughneck and ways to enhance the horse's performance. P.P.: If the horse the ah, had he been milkshaked before did he race well when he was milkshaked? Not every horse races well when they get bagged. (Unintelligible.) H.B.: He came, he raced but not the way he supposed (sic) to. P.P.: I'll speak with Charlie tomorrow morning. Well the only thing to do is to try it one start. H.B.: Yes. P.P.: Not (sic) that expensive to do. (Unintelligible.) H.B.: Exactly. P.P.: If the horse improves. H.B.: Alright (sic). J.G.: How long does it take before we do something like that for (unintelligible). P.P.: Two and a half hours before the race. Thereafter, Respondent made the following statement: P.P.: OK, the same thing that we used to, when we used to pass the tube, you know, but now, we can't pass the tube. What we're doing is giving it orally. Mix the stuff up put it in their dose syringe. Put it on the back of their tongue a hundred and eighty c.c. and (unintelligible) even in the states where they have the black box, it won't test positive, pass the stomach tube and dump that whole big load in him shows on the box. Subsequently in the conversation, the following dialogue occurred: H.B.: And we going (sic) to do for Yankee Roughneck (unintelligible). J.G.: Well, what day do we want to do that? When we find out when he's, I think he's in Thursday. P.P.: Okay. H.B.: We'll find out today. P.P.: (Unintelligible) check with Charlie and the day he gets in. H.B.: Yeah. The milkshake referred to by Respondent and by the other participants in this conversation is a liquid concoction that includes a mixture of sodium bicarbonate. As described by Respondent, the mixture would thereafter be given the horse by dose syringe. This mixture is given to a racehorse in the hopes of enhancing the horse's performance during the race. In the amounts discussed by Respondent, sodium bicarbonate meets the definition of a "medicine" within the meaning of Section 550.235(2), and Section 550.2415(1)(a) and (8), Florida Statutes. The evidence established that sodium bicarbonate raises the ph level in the horse beyond the normal physiological range and can be expected to delay muscle fatigue in a horse by buffering the buildup of lactic acid in the muscle during periods of exercise. The horse can be expected to run faster because the onset of fatigue will be delayed. An improvement of one to two seconds can be expected in the horse's racing time, which equates to approximately five lengths in a harness race. Sodium bicarbonate is also administered to racehorses to prevent a condition formally known as exertional rhabdomyolisis and informally referred to as "tying up". The onetime administration of sodium bicarbonate shortly before race time under the facts of this case was to enhance the horse's performance and not to prevent tying up. If the prevention of tying up had been the goal, small amounts of sodium bicarbonate would had been added to the horse's food over an extended period of time. The Respondent's reference to the "black box" in the taped conversation is to a device employed by many race tracks to test whether a horse has been "milkshaked" or otherwise improperly medicated. Pompano Track did not use a blackbox. The Respondent's reference to "tubing" a horse is a prohibited practice whereby a stomach tube is passed through the horse's mouth and into the stomach. The "milkshake" is thereby pumped directly into the horse's stomach. The tubing of a race horses is a practice prohibited by rule adopted by Petitioner. The tubing rule was adopted by Petitioner in an effort to stop the practice of tubing horses by grooms or trainers who have inadequate training and to prevent the practice of milkshaking horses. Typically, more of the concoction would be administered by tubing than by using the dose syringe. The evidence established that the amount of sodium bicarbonate discussed by Respondent is sufficient to enhance the horse's performance. Administering the "milkshake" by syringe, as Respondent said he would do, would not violate Petitioner's rule against tubing a horse. Administering the "milkshake" by syringe, as Respondent said he would do, would constitute the administration of a medication within twenty-four hours of a race in violation of Section 550.2415(8), Florida Statutes. The Thursday referred to in the conversation is May 27, 1993, the day that Yankee Roughneck was next scheduled to race. On May 27, 1993, Dr. Michael Carinda, a veterinarian who was in practice with Respondent, brought a "milkshake" to Yankee Roughneck's stable. A groom thereafter administered the milkshake to Yankee Roughneck in the manner described by Respondent. Yankee Roughneck placed third in his race, but he ran slightly slower than he had in his previous race. The evidence did not establish that Respondent agreed to "milkshake" the horse You've Got The Time within twenty-four hours of a race.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order that adopts the findings of fact and conclusions of law contained herein. IT IS FURTHER RECOMMENDED that Petitioner's Final Order find Respondent not guilty of the offenses alleged in Counts One, Four, Five, and Six of the Amended Administrative Complaint. IT IS FURTHER RECOMMENDED that Petitioner's Final Order find Respondent guilty of the offenses alleged in Counts Two and Three, suspend Respondent's occupational license for a period of one year, and assess against Respondent an administrative fine in the amount of $2,000. DONE AND ENTERED this 12th day of December, 1994, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of December 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-5993 The following rulings are made on the proposed findings of fact submitted by the Petitioner. The proposed findings of fact in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 13, 20, 21, 26, and 30 are adopted in material part by the Recommended Order. The proposed findings of fact in paragraph 11 are adopted in part by the Recommended Order and are rejected in part as being unnecessary to the conclusions reached. The proposed findings of fact in paragraphs 14, 15, 16, 17, 18, 19, 22, 23, 24, 25, 27, 28, 29, 31, 32, 33, 34, 35, 37, 38, 39, 41, 42, 43, 44, 45, and 46 are rejected as being subordinate to the findings made. The proposed findings of fact in paragraph 36 are rejected as being unnecessary to the conclusions reached. The proposed findings of fact in paragraph 40 are adopted in part by the Recommended Order, but are rejected in part as being argument that is subordinate to the findings made. The following rulings are made on the proposed findings of fact submitted by the Respondent. The proposed findings of fact in paragraphs 1, 2, 3, 4, 11, and 15 are adopted in material part by the Recommended Order. The proposed findings of fact in paragraphs 5 and 8 are rejected as being unnecessary to the conclusions reached. The composition of the concoction referred to as a "milkshake" was described in the Amended Administrative Complaint and was established at the formal hearing. The proposed findings of fact in paragraph 6 are rejected as being contrary to the findings made. The proposed findings of fact in paragraph 7 are subordinate to the findings made. The proposed findings of fact in paragraphs 8, 12, and 13 are rejected as being argument. The proposed findings of fact in paragraphs 9 and 10 are rejected as being unnecessary to the conclusions reached or as being contrary to the findings made. The proposed findings of fact in paragraphs 14 and 16 are rejected as being argument that is contrary to the conclusions reached or to the findings made. COPIES FURNISHED: Richard A. Grumberg, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32308 Karen C. Amlong, Esquire William Amlong, Esquire Amlong and Amlong 500 Northeast 4th Street, 2nd Floor Fort Lauderdale, Florida 33301 Dr. Paul R. Plante 1450 Southwest Third Street Pompano Beach, Florida 33069 William E. Tabor, Director Division of Pari-Mutuel Wagering 1940 North Monroe Street Tallahassee, Florida 32399-0792 Jack McRay, Acting General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue in this case is whether the Respondent licensee should be disciplined for allegedly violating F.A.C. Rule 61D-1.002(22).
Findings Of Fact The Respondent, David A. Held, has been in the business of training racing greyhounds in Florida, with the appropriate State of Florida licensure, for approximately 15 years. On or about August 25, 1993, he applied for renewal of his license, and on September 9, 1993, his occupational license as an unrestricted professional greyhound trainer was renewed for another year. By all accounts, during the entirety of the Respondent's career as a professional greyhound trainer, up until the incidents involved in this case, the Respondent did a creditable job both training and caring for the animals in his care. In early September, 1993, a series of stressful events in the Respondent's life built to a level of stress with which the Respondent no longer could cope effectively. First, for some time, the Respondent had been divorced and had primary responsibility for the care of his young son (with assistance from his parents.) He also was caring for and training a number of racing greyhounds at a kennel in the Tampa compound in Plant City, Florida. He leased the kennel from Charles Marriott, who paid him $100 a month to "finish" each greyhound Marriott placed in the Respondent's care. Marriott also paid the cost of schooling his greyhounds at the track in Sarasota every Monday and Thursday morning and paid the cost of any veterinarian services needed for his greyhounds. He also received $700 in approximately August, 1993, for "finishing" seven greyhounds owned by Lamar Porter and being trained by Dorothy Weekley during that month. But, in addition to Marriott's 16 greyhounds and Porter's seven, the Respondent also had approximately 21 others in the kennel in early September, 1993. Twenty were owned by an individual named "Jim," who stopped paying the Respondent. Without any income from "Jim," the Respondent began having serious financial difficulties covering the expenses of caring for and maintaining all of the animals in his charge, much less also providing living expenses for him and his son. For reasons not fully explained at the hearing, the Respondent always bought the meat in Clearwater. Due to his financial difficulties, the Respondent lost his credit at the place where he was purchasing frozen meat for the greyhounds in his kennel. As a result, he had to pay cash and buy the meat daily. The additional time spent buying meat on a daily basis put additional stress on the Respondent. To make matters worse, the roof of his kennel collapsed in early September, 1993. He had to move all of the greyhounds in his charge to a temporary kennel. Anticipating flea and tick and other problems from using the temporary kennel, he mowed the grass in the "turn-out" area of the temporary kennel and even tilled the soil. Despite those precautions, he began having worse than normal flea and tick problems. In addition, many of his greyhounds began to develop a skin disease characterized by multiple lesions. (The Respondent referred to it as "the Alabama rot.") Meanwhile, while trying to attend to all of the other responsibilities he had, the Respondent also had to re-roof and re-paint his kennel. While this was going on, his equipment was scattered in various places in the two kennel locations, and there was construction debris on the grounds as well. His operation appeared to be and was in fact in a state of chaos. While trying to cope with all of the unusual problems he was having, the Respondent still managed to continue to care for the greyhounds in his care. He cared for and fed the animals, turned them out to urinate and excrete feces and exercise several times a day, "finished" them (i.e., prepared them for race training at a track), and met Marriott at the track in Sarasota every Monday and Thursday to "school" his greyhounds. On September 8, 1993, the Respondent had to be at the dog track in St. Petersburg in the late afternoon. He also had to "turn his dogs out" and buy meat for them. He decided that, instead of driving all the way back to Plant City to "turn out" at 5:30 p.m., the normal time for the next "turn-out," he would first go directly to Clearwater to buy the meat. He did not get back to his kennel until later in the evening. Meanwhile, the owner of one of the dogs at his kennel, a Lamar Porter, was driving by the Tampa compound in Plant City and decided to check on his dogs. He was told at the security gate that the Respondent had not been there to "turn out." Porter tried to reach the Respondent by telephone and got his mother at his parents' home. Porter told her that the Respondent had not "turned out" and could not be located and made the statement that someone had better "turn out." Based on Porter's statement, the Respondent's mother decided that she and her husband should take it upon themselves to try to "turn out" for her son. They drove to the compound, went to the Respondent's kennel, and began to "turn out." During the "turning out," the Respondent's parents "turned out" dogs that should not have been "turned out" together and "turned out" too many dogs at once. Some of the dogs began fighting, and the Respondent's parents were unable to stop the fighting. The situation quickly was out of control, and the Respondent's parents sent for help. By the time help arrived, several of the dogs were injured, some seriously; one was killed. The next morning, Thursday, September 9, 1993, the Respondent met Marriott at the track in Sarasota, as scheduled. Marriott's greyhounds looked good and performed well in the schooling. Up to then, Marriott was "very satisfied" with the Respondent. Some of his best greyhounds at the St. Petersburg track, where he raced his dogs, were "finished" by the Respondent. On September 9, 10 or 11, 1993, the Respondent also delivered seven of Porter's dogs to Dorothy Weekley. Weekley also is a racing greyhound trainer. She had agreed with Porter to train and race his greyhounds in return for a 65 percent interest in them. Through Porter, she paid the Respondent $700 to "finish" the seven greyhounds for her during the preceding month. When the Respondent delivered the greyhounds to Weekley at an "unofficial schooling," they were in poor condition. Weekley testified that they appeared to be underfed and poorly cared for. She testified that they were underweight and out-of-condition and that they were infested with ticks and fleas. While it is not inconceivable, in light of the problems the Respondent was having with the "turn-out" pen at his temporary kennel, that the Porter greyhounds had worse than usual ticks and fleas, there does not appear to be any reason why they would have more ticks and fleas than Marriott's greyhounds, which looked fine to him, or why the skin disease afflicting the dogs would have afflicted Porter's greyhounds more than Marriott's. There also does not appear to be any reason why Marriott's greyhounds would have been better fed or exercised than Porter's. However, it is quite possible that Porter's greyhounds were more involved in and more affected by the dog fight the previous evening than Marriott's. In any event, it is curious that Weekley never complained to the Respondent about the condition of the dogs, and the evidence did not clearly explain the reasons for the poor condition of the Porter greyhounds when the Respondent delivered them to Weekley. On September 10, 1993, the Respondent took one of his dogs with the worst skin lesions from "the Alabama rot" to the local veterinarian who specialized in the care of racing greyhounds for treatment and for advice on how to treat the other dogs that also had developed the skin problem. The Respondent planned to worm his greyhounds on Sunday, September 12, 1993. The Respondent uses worm pills that require the dogs to have an empty stomach so they are not fed the day before. Although the veterinarian who testified at the hearing explained that he prefers another method that does not require the dogs to skip a feeding, there was no evidence that the method used by the Respondent was inappropriate. (It is how the Respondent always has wormed greyhounds in his charge.) The Respondent did not feed the dogs on the evening of Saturday, September 11, and planned to feed them on the evening of Sunday, September 12, 1993. He wormed the dogs, as planned, earlier on Sunday, September 12, 1993, but when he went to feed them later that evening, he discovered that the meat was spoiled. He thought at the time that he had taken the meat out too early to thaw although it is possible that the meat was spoiled before it was frozen for sale. At that point, on Sunday evening, September 12, 1993, the Respondent was unable to cope with any more adversity. (In view of his poor mental and emotional condition, the Respondent probably was not caring for the dogs as well as he normally would have throughout the weekend.) Nor was he able or willing to seek help in meeting his responsibilities. In extreme emotional distress, he simply walked away from the kennel and his responsibilities. By the next morning, Monday, September 13, 1993, the Respondent was considering suicide. He telephoned his parents to tell them. He asked them to telephone Marriott to tell him what was happening so that he could arrange to take care of the dogs. A short time later, the Respondent's father found the Respondent collapsed and unconscious on the seat of his truck. The Respondent's father turned off the engine, and the Respondent survived. His parents got him help at a local crisis intervention center. Before Marriott was able to reach the Respondent by telephone to find out why the Respondent had missed the scheduled schooling in Sarasota that morning (the Respondent's cellular telephone Marriott was calling had been stolen), he got a telephone call from the Respondent's mother. Marriott immediately telephoned Lamar Porter and asked him to look in on and take care of the dogs in the Respondent's kennel until he could get there. When Porter arrived along with some neighboring kennel operators, the Respondent's kennel still was in deplorable condition (primarily as a result of the unfinished refurbishing and the requirement to contemporaneously use the temporary kennel), and his dogs already were in terrible shape. They had not eaten since the evening of Friday, September 10, 1993, and had not been watered or turned out since some time on Sunday. It does not take more than a few days without food and water for greyhounds to develop serious health problems. In addition, the worming process used by the Respondent tends to dehydrate the dogs. By the time the dogs were "rescued" on Monday, September 13, 1993, they were weak, dehydrated and practically starved. One was unable to stand and had its tail chewed off (probably by the dog in the adjacent kennel) and was carried to a veterinarian for treatment. When the vet telephoned the dog's owner to apprise her of the extent of the dog's injuries, the owner decided to authorize the vet to euthanize the animal. After being admitted to the crisis center, the Respondent was hospitalized for approximately a week. Marriott evicted him from the kennel, and other arrangements were made for the care of the greyhounds found there. The Respondent had no further involvement with the animals. During his hospitalization, the Respondent was diagnosed as having manic-depression and was given medication. On being discharged from the hospital, the Respondent's attending mental health professional advised that he continue a course of medication and treatment after his discharge. The Respondent has not followed that advice.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering, enter a final order revoking the license of the Respondent, David A. Held, for one year and declaring him ineligible for relicensure for a period of one year, with relicensure (1) conditioned upon certification by a Florida licensed mental health practitioner that he either has completed necessary mental health treatment, or that he remains on an appropriate course of treatment, and that he is mentally able to carry out the responsibilities of licensure, and (2) on probation for one year with appropriate conditions to be determined by the Division. RECOMMENDED this 3rd day of June, 1994, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of June, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-1202 To comply with the requirements of Section 120.59(2), Fla. Stat. (1991), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. 1.-9. Essentially accepted and incorporated to the extent not subordinate or unnecessary or argument. 10. Conclusion of total neglect for the entire time period, rejected as subordinate to facts contrary to those found. Otherwise, essentially accepted and incorporated to the extent not subordinate or unnecessary or argument. 11.-13. Essentially accepted and incorporated to the extent not subordinate or unnecessary or argument. 14. Rejected to the extent contrary to facts found. (The evidence did not clearly explain the reasons for the poor condition of the Porter greyhounds when the Respondent delivered them to Weekley. It is curious that Weekley never complained to the Respondent about the condition of the dogs.) 15.-16. Essentially accepted and incorporated to the extent not subordinate or unnecessary or argument. Accepted but subordinate and unnecessary. (Several other conditions precedent to the resulting death of a dog also coincided.) Rejected as not proven that he "never" sought assistance; however, as found, except for seeking veterinarian assistance for the skin disease, the Respondent did not seek the assistance needed to cope with the situations described in the findings of fact. Respondent's Proposed Findings of Fact. Accepted but largely subordinate and unnecessary. In part, rejected as contrary to facts found (that Marriott had 16 dogs in the Respondent's kennel at the time) and as subordinate to facts contrary to those found (that all of the dogs in the kennel indeed "had trouble" on September 13, 1993.) Otherwise, accepted and incorporated to the extent not subordinate or unnecessary or argument. Second sentence, rejected as not supported by any evidence and as subordinate to facts contrary to those found. Fourth sentence, not clear from the evidence whether Porter was there up to the time the dogs became agitated; besides, irrelevant if he was. Fifth through eight sentences, in part rejected as not supported by any evidence (whether the dogs were muzzled) or as not clear from the evidence (whether female dogs were involved; besides, also irrelevant since the Respondent was not there and was not involved. Ninth sentence, not clear whether Porter was there when the Respondent drove up but irrelevant in any event. Tenth sentence through end of paragraph, rejected as contrary to the greater weight of the evidence that Porter "interfered" rather than simply expressed normal concern for the welfare of his dogs and the others in the kennel; otherwise, rejected as being subordinate and argument. COPIES FURNISHED: John B. Fretwell, Esquire Department of Business & Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007 David A. Held 6202 South Harold Avenue Tampa, Florida 33616 Jack McRay, Esquire Acting General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact Clenbuterol is a performance enhancing drug. Ms. Gemmill received Clenbuterol from Dr. Griffith on the grounds of Calder Race Course, a pari-mutuel facility. Dr. Griffith caused the Clenbuterol that he gave to Ms. Gemmill to be kept on the grounds of Calder Race Course, apari-mutue1 facility.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby recommended that a Final Order be entered which adopts the findings of fact contained herein and which dismisses the charges contained in the administrative complaint. RECOMMENDED this 13th day of December, 1991, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of December, 1991.
Findings Of Fact Petitioner is an agency of the State of Florida charged with the duty of regulating, among other things, the harness horse racing industry in the State of Florida. On November 28, 1979, Charles Federman, holder of pari-mutuel trainer's license L-25378, trained and entered the standardbred horse, Hanker Chief, in the ninth race at Pompano Park in Florida, where Tourist Attractions, Inc., is licensed by the Florida Division of Pari-Mutuel Wagering to conduct horse racing. The horse ran in the race and won. Following the race a urine specimen was taken from the horse by Division personnel. Following collection, the sample, was sealed and was placed in a locked refrigerator in the office of the detention barn where the samples are customarily stored until transportation to the Division laboratory. A card bearing number 56969 was filled out, and the top of the card bearing the same number was taped to the sample. The bottom of the card, also bearing the number 56969 was filled out by the collector of the sample to contain information pertinent to where, when, by whom, and from what horse the sample was taken. The sample was picked up at the detention barn by Division personnel and transported to the Division laboratory. The sample was analyzed by personnel at the Division laboratory by means of seven thin layer chromotographies, gas chromotography, and mass spectrometry. These analyses corresponded precisely with analyses by identical tests of a standard derived from Stadol, a drug marketed by Bristol Laboratories whose active ingredient is "butorphanol". Accordingly, it is specifically concluded that the facts of record in this proceeding support the conclusion that the laboratory analyses performed by Division personnel were accurate, and that those analyses establish a positive identification of "butorphanol" to have been contained in the urine specimen taken from Respondent's horse following the ninth race on November 28, 1979. Butorphanol is marketed as a salt, butorphanol tartrate, under the brand name Stadol, by Bristol Laboratories. Butorphanol is a narcotic with potent analgesic properties approximately equivalent to that of morphine, although its exact mechanism is unknown. Butorphanol acts as a "depressant", in that two milligrams depresses respiration to a degree equal to ten milligrams of morphine, but also has "stimulant" effects on the cardiovascular system. Butorphanol is not recommended for humans physically dependent on narcotics because it has a physical dependence liability, although admittedly low. In horses, butorphanol acts as an analgesic and, depending on dosage, it either depresses or stimulates a horse. The drug would be of use in harness racing for its potent pain killing effects if a horse were sore or lame, or for its depressant effects if a horse were high-strung and likely to break its gait. The smallest dosage of Stadol marketed by Bristol Laboratories is a 1 milliliter vial containing 1 milligram of butorphanol. In the smallest administrable injection, butorphanol produces narcotic effects. Respondent was present on November 15, 1979, at a meeting of all drivers held before the start of the meet during which the offense charged occurred. At that meeting, Division personnel announced to all drivers and trainers in attendance that Stadol was a prohibited substance and was not to be used. Drivers are required to attend meetings such as that held on November 15, 1979, meetings under the harness racing Rules. See, Rule 7E-4.21 (8), Florida Administrative Code. Respondent holds a driver's/trainer's license. In addition, notices were posted around the track advising that the use of Stadol was prohibited. In particular, such a notice was posted in the Racing Secretary's office where every horseman must go to eater a horse in a race. On the day of the race in question Respondent allowed a person identified by him as "Dr. Rites" to examine and treat Hanker Chief for a sore leg which had been causing the horse to limp. During the treatment, "Dr. Rites" gave the horse injections, which the Respondent understood to be Lasix and a "pain killer". "Dr. Ritos" was not, at that time, licensed by the Division as a veterinarian as required by Rule 7E-4.31(7), Florida Administrative Code. The parties to this proceeding each submitted proposed findings of fact for consideration by the Hearing Officer. To the extent that those proposed findings of fact have not been included in this order, they have been rejected as being either irrelevant to the issues involved in this proceeding, or as not having been supported by evidence of record.
