The Issue Whether Respondents have violated the provisions of section 550.2415(1)(a), Florida Statutes (2010), and if so, what penalty should be imposed?
Findings Of Fact The Division of Pari-Mutual Wagering is the state agency charged with the regulation of pari-mutuel wagering pursuant to section 20.165 and chapter 550, Florida Statutes. At all times material to the allegations in the Administrative Complaints, Respondent Richard Alves held a pari- mutuel wagering greyhound trainer license, number 1053205-1021, issued by Petitioner. At all times material to the allegations in the Administrative Complaints, Respondent Casey Alves was also licensed as a greyhound trainer by Petitioner, having been issued license number 2015868-1021. At all times material hereto, Daytona Beach Kennel Club (DBKC) has been a licensed Florida pari-mutuel facility authorized to conduct pari-mutuel wagering. The Respondents trained greyhounds that were entered to race at DBKC. Cocaine is a local anesthetic and a Class One drug under the Uniform Classification Guidelines for Foreign Substances, as promulgated by the Association of Racing Commissioners, Inc. It is a prohibited medication pursuant to section 550.2415(10(a). At all times material hereto, Respondent Richard Alves was the trainer of record for greyhounds named "Flying Car," "Goldie's Trey," and "Iruska Direct." At all times material hereto, Respondent Casey Alves was the trainer of record for greyhounds named "Kelsos Jalopy," "Wild Mia," "Mani Appeal," and "Fuzzy's Big Shot." Flying Car On April 27, 2010, Flying Car was entered in the third race at DBKC. Flying Car finished sixth in the third race that day. Flying Car was subject to pre-race testing, and prior to the start of the race, urine sample 610687 was collected from Flying Car. The urine sample was processed in accordance with established procedures and forwarded to the lab for analysis. Richard Alves was not present in the testing enclosure when the urine sample was taken, because according to John Decker, DBPR Investigations Supervisor, trainers are not permitted to be on the track when greyhounds are there for the race. Trainers are required to drop the animals off at the track approximately one and a half hours prior to the racing schedule and leave them there until after the dog's race is over. Depending on when the dog races, the trainer has no contact with the racing animal from two to approximately five hours. Richard Alves did not sign the sample collection form for Flying Car, because he was not present when the collection was taken. The University of Florida Racing Laboratory tested urine sample number 610687 and found that it contained Benzoylecgonine, a metabolite of cocaine. Goldie's Trey Respondent Richard Alves was the trainer of record for racing greyhound Goldie's Trey on August 5, 2010. On August 5, 2010, Goldie's Trey was entered in the tenth race at DBKC. Goldie's Trey finished sixth in the tenth race. Goldie's Trey was subject to pre-race testing, and prior to the start of the race, urine sample 603139 was collected from Goldie's Trey. The urine sample was processed in accordance with established procedures and forwarded to the lab for analysis. Richard Alves was not present in the testing enclosure when the urine sample was taken, because trainers of greyhounds are not permitted to be on the track at that time. Richard Alves did not sign the sample collection form for Goldie's Trey, because he was not present when the collection was taken. The University of Florida Racing Laboratory tested urine sample 60319 and found that it contained cocaine, plus Benzoylecgonine and Ecgonine Methyl Ester, metabolites of Cocaine. Iruska Direct Respondent Richard Alves was the trainer of record for the greyhound, Iruska Direct. On November 26, 2010, Iruska Direct was entered in the 15th race at DBKC. Iruska Direct finished sixth in the 15th race. Iruska Direct was subject to pre-race testing, and prior to the start of the race, urine sample 662039 was collected from Iruska Direct and processed in accordance with established procedures and forwarded to the lab for analysis. Richard Alves was not present in the testing enclosure when the urine sample was taken, because trainers for greyhounds are not permitted to be on the track when the animals are there for the race. Richard Alves did not sign the sample collection form for Iruska Direct, because he was not present when the collection was taken. The University of Florida Racing Laboratory tested urine sample number 662039 and found that it contained Benzoylecgonine, a metabolite of cocaine. Kelsos Jalopy Respondent Casey Alves was the trainer of record for the racing greyhound Kelsos Jalopy. On November 10, 2010, Kelsos Jalopy was entered in the seventh race at DBCK. The dog finished second in the seventh race. Kelsos Jalopy was subject to pre-race testing, and prior to the start of the race, urine sample 661859 was collected from Kelsos Jalopy and processed in accordance with the established procedures and forwarded to the lab for analysis. Casey Alves was not present in the testing enclosure when the urine sample was taken, because trainers for greyhounds are not permitted to be on the track when the animals are there for the race. Casey Alves did not sign the sample collection form for Kelsos Jalopy, because he was not present when the collection was taken. The University of Florida Racing Laboratory tested urine sample number 661859 and found that it contained Benzoylecgonine, a metabolite of cocaine. Mani Appeal Respondent Casey Alves was the trainer of record for the racing greyhound Mani Appeal on November 6, 2010. On November 6, 2010, Mani Appeal was entered in the second race at DBKC. Mani Appeal finished fourth. Mani Appeal was subject to pre-race testing, and prior to the start of the race, urine sample 661795 was collected from Mani Appeal and processed in accordance with established procedures and forwarded to the lab for analysis. Casey Alves was not present in the testing enclosure when the urine sample was taken, because greyhounds' trainers are not permitted to be on the track at that time. Casey Alves did not sign the sample collection form for Mani Appeal, because he was not present when the collection was taken. The University of Florida Racing Laboratory tested urine sample number 661795 and found that it contained cocaine, and Benzoylecgonine and Ecgonine Methyl Ester, metabolites for cocaine. Wild Mia Respondent Casey Alves was the trainer of record for the racing greyhound Wild Mia on November 5, 2010. On that day, Wild Mia was entered in the sixth race at DBKC. Wild Mia finished second in the sixth race. Prior to the start of the race, urine sample 661786 was collected from Wild Mia as part of pre-race testing, and processed in accordance with established procedures and forwarded to the lab for analysis. Casey Alves was not present in the testing enclosure when the urine sample was taken, because greyhounds' trainers are not permitted to be on the track at that time. Casey Alves did not sign the sample collection form for Wild Mia, because he was not present when the collection was taken. The University of Florida Racing Laboratory tested urine sample number 661786 and found that it contained cocaine, and Benzoylecgonine and Ecgonine Methyl Ester, metabolites for cocaine. Fuzzy's Big Shot Respondent Casey Alves was the trainer of record for the racing greyhound Fuzzy's Big Shot on November 17, 2010. On that day, Fuzzy's Big Shot was entered in the fifth race at DBKC and finished first. Fuzzy's Big Shot was subject to pre-race testing. Prior to the start of the race, urine sample 661943 was collected from Fuzzy's Big Shot in accordance with established procedures and forwarded to the lab for analysis. As was the case with the other racing greyhounds, Casey Alves was not present in the testing enclosure when the urine sample was taken, because greyhound trainers are not permitted to be on the track at that time. Casey Alves did not sign the sample collection form for Fuzzy's Big Shot, because he was not present when the collection was taken. The University of Florida Racing Laboratory tested urine sample 661943 and found that it contained Benzoylecgonine, a metabolite of cocaine. Respondents steadfastly deny giving cocaine to any of the animals discussed above. Both Casey and Richard Alves' kennels were searched in November of 2010. No drugs or illegal substances were found in the kennels. John Dekker, Investigations Supervisor for the Department for the Department, testified that the procedures were different for pre-race and post-race testing.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED that the Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering enter a final order finding that Respondent Casey Alves violated section 550.2415(1)(a); impose an administrative fine of $2,000; and suspend his occupational license for a period of one year, retroactive to January 31, 2011. It is further recommended that the Department enter a final order finding that Richard Alves violated section 550.2415(1)(a); impose an administrative fine of $1,500 and suspend his occupational license for one year, retroactive to January 31, 2011. DONE AND ENTERED this 19th day of September, 2011, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON 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 19th day of September, 2011. COPIES FURNISHED: David Perry, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 40 Tallahassee, Florida 32399-2202 Mitchell G. Wrenn, Esquire 958 Ridgewood Avenue Daytona Beach, Florida 32114 Milton Champion, Director Division of Pari-Mutuel Wagering Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399 Layne Smith, 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 Respondent, Srdan Saric, committed violations of Chapter 550, Florida Statutes (2005), and Florida Administrative Code Chapter 61D-6, as alleged in an Administrative Complaint filed with the Department of Business and Professional Regulation in DBPR Case Nos. 2005042972, 2005039423, and 2005042974, and amended January 30, 2006; and, if so, what disciplinary action should be taken against his State of Florida pari-mutuel wagering occupational license.
Findings Of Fact The Parties. Petitioner, the Department of Business and Professional Regulation, Division of Pari-mutuel Wagering (hereinafter referred to as the "Division"), is an agency of the State of Florida created by Section 20.165(2)(f), Florida Statutes, and charged with the responsibility for the regulation of the pari- mutuel wagering industry pursuant to Section 550.0251, Florida Statutes. Respondent, Srdan Saric, is, and was at the times material to this matter, the holder of a pari-mutuel license, number 2016930-1021, issued by the Division. During the time period at issue in this case, Mr. Saric trained harness race horses and was a jockey at the harness race course of Pompano Park Racing (hereinafter referred to as "Pompano Park"), located in Pompano Beach, Florida. Pompano Park is a harness horse racing facility authorized to conduct pari-mutuel wagering in Florida and is the location of all activity material to this matter. On July 27, 2005, Respondent was the trainer of record and jockey for two standard bred harness race horses, known as "Youngbro Clever" and "Swift Courier." Both horses were owned by Jeanette Glowacki. The Events of July 27, 2005. Youngbro Clever and Swift Courier were both scheduled to race at Pompano Park the evening of July 27, 2005. Youngbro Clever was to run in the fourth race and Swift Courier was to run in the twelfth race. The fourth race was scheduled to begin at approximately 8:15 to 8:30 p.m. Both horses were being housed in Barn C of Pompano Park. That barn was shared by the two horses being trained by Mr. Saric and horses owned and trained by Michael Snyder. Tack boxes, where equipment was stored, were located at Barn C adjacent to the wall just outside the horse stalls. Those located in the area where Mr. Saric's horses were housed were considered to be within areas of Barn C which he occupied or had the right to occupy. The tack boxes are part of the premises within the grounds of a racing permitholder where racing animals were lodged or kept and which Mr. Saric occupied or had the right to occupy. At approximately 7:30 p.m., on July 27, 2005, Jeremy Glowacki, the son of the owner of Youngbro Clever and Swift Courier and an employee Mr. Saric had previously fired, informed Pompano Park security supervisor Richard Masters that he had witnessed Mr. Saric place syringes in a tack box located just outside Barn C, Stall 8. Based upon Mr. Glowacki's report, Pompano Park security searched the tack box and found a 35 cc hypodermic syringe with needle attached and a 12 cc hypodermic syringe with needle attached. As a result of the discovery of the syringes, Youngbro Clever and Swift Courier were immediately scratched from their scheduled races and were sent to the State Veterinarian for drug testing. Mr. Saric was also suspended from Pompano Park and remained so at the time of the final hearing of this matter. The State Veterinarian drew blood serum sample 173675 from Youngbro Clever and blood serum sample 173680 from Swift Courier. These samples were processed in accordance with established procedures. Both blood serum samples were, along with the two syringes recovered from Mr. Saric's tack box, sent to the University of Florida Racing Laboratory (hereinafter referred to as the "Racing Laboratory"), for analysis. Results of Racing Laboratory Testing. The Racing Laboratory, following applicable procedures, performed an analysis on the syringes found in Mr. Saric's tack box and the blood serum samples taken from Youngbro Clever and Swift Courier. No prohibited substance was detected by the Racing Laboratory analysis of the 35 cc syringe. Flunixin was detected by the Racing Laboratory analysis of the 12 cc syringe. Flunixin is a "non-steroidal anti-inflammatory drug" which can be used to suppress inflammation and provide pain relief to race horses. The Association of Racing Commissioners International, Inc. has classified Flunixin under the Uniform Classification Guidelines for Foreign Substances as a "Class IV" drug. As such, it is considered an "impermissible substance." Flunixin in excess of 200 ng/ml. was also found by the Racing Laboratory in blood serum sample number 173675 which had been collected from Youngbro Clever. Flunixin in excess of 200 ng/ml. was also found by the Racing Laboratory in blood serum sample number 173680, which had been collected from Swift Courier. In addition to Flunixin, the Racing Laboratory test of blood serum sample number 173675 collected from Youngbro Clever and blood serum sample number 173680 collected from Swift Courier also revealed that those samples contained phenylbutazone, or its metabolites, in excess of 16 micrograms per milliliter of serum. Like Flunixin, phenylbutazone is a "non-steroidal anti-inflammatory drug" which can be used to suppress inflammation and provide pain relief to race horses. Pursuant to Florida Administrative Code Rule 61D- 6.008, phenylbutazone, unlike Flunixin, may be administered to a race horse in an amount which, following the running of a race, will result in the horse's blood serum being found to contain less than 8 micrograms per milliliter of serum. Dr. Cole testified convincingly and credibly that Flunixin and phenylbutazone had been administered to Youngbro Clever and Swift Courier within 24 hours of their scheduled races on June 27, 2005. Youngbro Clever and Swift Courier, having been administered Flunixin and phenylbutazone within 24 hours of their scheduled races, would have been able to compete at a higher level in their scheduled races than if these drugs had not been ministered to them. According to Dr. Cole, whose unrebutted testimony in this regard is also credited, if Youngbro Clever and Swift Courier had been allowed to run their scheduled races, blood samples collected immediately after their respective races would have revealed the presence of phenylbutazone in each horse in excess of 8 micrograms per milliliter of serum. Mr. Saric's Prior Disciplinary History. Mr. Saric has previously been disciplined by the Division on two separate occasions. On both occasions, Mr. Saric was fined because Methocarbamol (a skeletal muscle relaxant and Class IV drug) was detected in urine samples collected from Youngbro Clever as part of the post race analyses. The first violation for which Mr. Saric was disciplined took place on December 6, 2004. Mr. Saric was fined $250.00 for this violation of Section 550.2415(1)(a), Florida Statutes (2004), and Florida Administrative Code Rule 61D- 6.011(1). The second violation for which Mr. Saric was disciplined took place on April 15, 2005. Mr. Saric was fined $500.00 for this violation of Section 550.2415(1)(a), Florida Statutes, and Florida Administrative Code Rule 61D-6.011(1). Mr. Saric's Responsibility for Youngbro Clever and Swift Courier. While Mr. Saric attempted, unsuccessfully, to prove that he did not place the syringes in his tack box or inject Flunixin and phenylbutazone into Youngbro Clever and Swift Courier, the evidence failed to support such a finding. The evidence also failed to prove that Jeremy Glowacki was responsible for these violations. More importantly, the evidence failed to prove that Mr. Saric took the measures necessary to protect Youngbro Clever and Swift Courier in particular and the racing industry generally from harm, especially considering the fact that this case involves the third time that Youngbro Clever has tested positive for a prohibited substances in his blood.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the final order be entered by the Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering, finding that Srdan Saric violated Sections 550.105(5)(b) and 550.2415(1)(c), Florida Statutes, and Florida Administrative Code Rules 61D-6.004(2) and 61D-6.011(1), as described in this Recommended Order; suspending his license for a total period of two years from the date of the final order; and requiring that he pay a fine of $6,000.00. DONE AND ENTERED this 14th day of April, 2006, in Tallahassee, Leon County, Florida. S LARRY J. SARTIN 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 14th day of April, 2006. COPIES FURNISHED: S. Thomas Peavey Hoffer Ralf E. Michels Assistants General Counsel Department of Business and Professional Regulation Division of Pari-Mutuel Wagering Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202 Rose H. Robbins, Esquire One Boca Place 2265 Glades Road Suite 324 Atrium Boca Raton, Florida 33431 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 Josefina Tamayo, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202
The Issue The two issues in this case are whether Respondent, as the trainer of record for two greyhounds; M's Shamrock, that first place finisher in the fourth race on November 7, 2001, and greyhound Lapislazuli, first place finisher in the fourteenth race on November 7, 2001, is legally responsible for the prohibited substance found in each greyhound's urine sample taken immediately after the races, and if so, what penalty should be imposed.
Findings Of Fact At all times relevant and material to this proceeding, Petitioner, Department of Business and Professional Regulation, Division of Pari-mutuel Wagering (Division), created by Subsection 20.165(2)(f), Florida Statutes, is the agency responsible for regulation of the pari-mutuel wagering industry pursuant to Section 550.0251, Florida Statutes. At all times relevant and material to this proceeding, Respondent, Curtiss D. Hughes, was the holder of a pari-mutuel license issued by the Division. Sanford-Orlando Kennel Club is a permit holder authorized to conduct greyhound racing and pari-mutuel wagering in the State of Florida. On November 7, 2001, Respondent was the trainer for a racing greyhound named M's Shamrock that finished first in the fourth race of the evening performance at Sanford-Orlando Kennel Club on that date. Immediately after each race the greyhounds who finish in the win, place and show positions are taken to the "cooling off" area where urine samples are taken by the Kennel's veterinarian assistant and urine sample collector. On November 7, 2001, Brandy Glaspey, veterinarian assistant, collected the urine sample of greyhound, M's Shamrock, and assigned, for identification purposes, number 738627 to M's Shamrock's urine sample. Urine sample 738627 was shipped to the University of Florida Racing Laboratory, Gainesville, Florida, where under the supervision of Dr. Ian R. Tebbett, Ph.D., professor and director of the racing laboratory at the University of Florida and qualified as an expert in forensic toxicology, it tested positive for illegal substance. On December 21, 2001, Respondent was the trainer for a racing greyhound named "Lapislazuli," which finished first in the fourteenth race of the matinee performance at Sanford- Orlando Kennel Club. Immediately after the race a urine sample was collected from Lapislazuli by Brandy Glaspey, veterinarian assistant, and assigned sample number 788210 for identification purposes. Urine sample numbered 788210 was shipped to the University of Florida Racing Laboratory, tested, and found to contain Benzoylecgonine, a metabolite of Cocaine. Cocaine is a Class 1 drug according to the Association of Racing Commissioners International classification system. Respondent testified that he did not administer the drug cocaine to greyhound, Lapislazuli, and he had never been cited for any prior drug violation while holding a Florida occupational license. Respondent's defense to the administrative complaint (Election of Right) alleged a possible breach of the "chain of custody" (from the end of the race, to bringing dogs to the ginny pit, to sample collection, to sample labeling, to sample examination and sample results) and a breach and/or lack of kennel security. There was no material evidence presented of a specific breach of security.
The Issue Whether Rule 61D-6.002(1), Florida Administrative Code, is an invalid exercise of delegated legislative authority.
Findings Of Fact Hennessey is the holder of an unrestricted U-1 Professional Pari-mutuel License authorizing him to train horses, which license is issued to Hennessey by the Department pursuant to the provisions of Section 550.105, Florida Statutes. Hennessey was charged in a hearing before the Stewards at Pompano Park with violating the provisions of Section 550.2415, Florida Statutes, regarding an impermissible drug found in a race horse entered to race by Hennessey. The disciplinary action was initiated by the Stewards against Hennessey after a post-race urine sample taken from a horse trained by Hennessey won a race at Pompano Park indicated the presence of two substances, caffeine and theophylline, a metabolite of caffeine. Hennessey testified at the hearing before the Stewards that he neither administered nor directed anyone to administer caffeine to the subject horse. Application of Rule 61D-6.002, Florida Administrative Code, makes Hennessey strictly liable for impermissible drugs found in horses he enters to race at pari-mutuel wagering facilities in the State of Florida. No evidence of willful administration of caffeine by Hennessey is known to exist. Warren is the holder of an unrestricted U-1 Professional Pari-mutuel License, License Number 0024037-1081, authorizing him to train horses. The license was issued to Warren by the Department pursuant to the provisions of Section 550.105, Florida Statutes. Warren was the trainer of record of a thoroughbred horse named "The Issue is Power," which won the fifth race conducted on November 12, 1999, in Miami, Florida, at the Tropical Park at Calder Race Meeting. After the race concluded, a urine sample, sample number 540322, was taken from "The Issue is Power" at the detention facility operated by the Department. Sample number 540322 was tested by the University of Florida Racing Laboratory, and that sample was found to contain benzoylecgonine, which is a metabolite of cocaine. The estimated concentration of benzoylecgonine was 50 to 54 nanograms per milliliter. Testing of sample number 540322 did not show the presence of egonine methyl ester, which is another metabolite of cocaine. Warren denies that he knowingly or intentionally administered cocaine to the horse "The Issue is Power" at any time. Application of Rule 61D-6.002, Florida Administrative Code, makes Warren strictly liable for impermissible drugs found in horses he enters at pari-mutuel wagering facilities in the State of Florida. No evidence of willful administration of cocaine by Warren is known to exist. Ms. Gangemi, is the holder of an unrestricted U-1 Professional Pari-mutuel License, License Number 0257328-1081, authorizing her to train horses. The license was issued to Ms. Gangemi, by the Department pursuant to the provisions of Section 550.105, Florida Statutes. Ms. Gangemi was the trainer of record of a thoroughbred horse named "Quanchotaug," which finished third in the ninth race race of the matinee performance conducted on July 11, 2000, in Miami, Florida, at Calder Race Course, Inc. After the race concluded a urine sample, sample number 658542, was taken from "Quanchotaug" at the detention facility operated by the Department. Sample number 658542 was tested by the University of Florida Racing Laboratory, and that sample was found to contain benzoylecgonine. The estimated concentration of benzoylecgonine was 10 nanograms per milliliter. A split sample analysis performed by the Center For Tox Services, an independent laboratory in Tempe, Arizona, confirmed the presence of benzoylecgonine in sample number 658542. The estimated concentration of benzoylecgonine was 2 nanograms per milliliter. Application of Rule 61D-6.002, Florida Administrative Code, makes Ms. Gangemi strictly liable for impermissible drugs found in horses she enters to race at pari-mutuel wagering facilities in the State of Florida. No evidence of willful administration of cocaine by Ms. Gangemi is known to exist. Testing of sample 658542 did not show the presence of egonine methyl ester. The administration or exposure of cocaine directly into the post-race urine sample of a horse could result in the presence of the metabolite benzoylecgonine. Pompano Park is authorized to conduct pari-mutuel wagering upon harness horse racing pursuant to a permit issued to it by the Department under Section 550.054, Florida Statutes. Tropical Park is authorized to conduct pari-mutuel wagering upon thoroughbred horse racing pursuant to a permit issued to it by the Department under Section 550.054, Florida Statutes. Calder Race Course is authorized to conduct pari-mutuel wagering upon thoroughbred horse racing pursuant to a permit issued to it by the Department pursuant to Section 550.054, Florida Statutes. Horse racing, at its best, is difficult to control, and would be practically impossible to regulate if every governing rule and regulation were made dependent for validity upon the knowledge or motives of the person charged with a violation. It would be almost impossible to prove guilty knowledge or intent in cases involving a reported positive test for an impermissible substance. Every consideration surrounding the business of operating a race track, and the racing of horses thereon, seems to call for firm and rigid rules placing responsibility and imposing penalties for their violation. The Department currently has six investigators assigned to cover 35 permitholders. The investigators are well known around the various race tracks they cover, which makes catching possible drug violations in the act almost impossible. The Department's investigators are generally notified of a drug confirmation about ten days after a race has been run. Given that there are so few investigators covering 35 tracks and the reports are received ten days after a race, it would be very difficult to successfully determine who administered a prohibited substance to a horse. The trainer is singularly the best individual to hold accountable for the condition of a horse. The trainer is either going to be with the horse at all times or one of his or her employees or contractors is going to be with the horse at all times, whether the horse is racing on an individual day or is merely stabled at the track. A trainer of racing horses is responsible for the animals' athletic conditioning. A trainer is also responsible for providing for the regular care of the horses he trains, including feeding and seeing to the medical needs of the horses. All persons who handle an animal prior to the running of a race are either employees of the track or Department or are employed by or in a professional relationship with the trainer. At no time prior to a race is a trainer or his employer prohibited from seeing to the security of the horse in the paddock. While there are other persons who come in contact with the horse prior to a race, the trainer due to his responsibility for the care and supervision of the animal stands in the best overall position to prevent improper medication of the horse. There is no practical alternative to holding the trainer of record responsible for the condition of the animals he enters to race. The Department's authority to require the return of a purse is insufficient to deter wrongdoers from attempting to affect the outcome of a race. The integrity of the pari-mutuel industry would suffer from the Department's inability to enforce statutes relating to the drugging of racing animals.
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.
Findings Of Fact At all times pertinent to the allegations contained herein, Respondents held valid Pari-Mutuel Wagering occupational licenses as greyhound judges that had been issued by Petitioner. Respondent, Robert C. Crawford, holds license number 0131528-6035 and was, at all times pertinent hereto, the Presiding Judge at Biscayne Kennel Club. Respondent, Robert E. May, holds license number 0131748-6035 and was, at all times pertinent hereto, the Associate Judge at Biscayne Kennel Club. Biscayne Kennel Club is a pari-mutuel facility located in Dade County, Florida, that is licensed by Petitioner. Petitioner has duly enacted a rule 1/ which provides that three judges have general supervisory authority and responsibility over all facets directly involved in the running of pari-mutuel races, including other race officials. Two of these judges, the "presiding judge" and the "associate judge" are so designated by the pari-mutuel facility. The third judge, referred to as the "division judge", is designated by the Petitioner. At all times pertinent to these proceedings, the three judges, acting as a collegial body, had the responsibility and the authority to supervise the Racing Secretary, the Paddock Judge, the Chart Writer, and all other racing officials at Biscayne Kennel Club. During the evening performance of April 30, 1991, Biscayne Kennel Club conducted 13 separate greyhound races upon which wagering was permitted. For the evening performance of April 30, 1991, Respondent Crawford and Respondent May were serving at Biscayne Kennel Club in their official capacities as Presiding Judge and Associate Judge, respectively. At the times pertinent hereto, including the evening performance of April 30, 1991, Douglas D. Culpepper was the Division Judge at Biscayne Kennel Club. The 13th race was conducted without apparent incident, the three judges agreed on the order of finish, and the official results were posted as agreed by the three judges. The official results reflected that the greyhound wearing blanket number 8 finished first, the greyhound wearing blanket number 5 finished second, the greyhound wearing blanket number 6 finished third, and the greyhound wearing blanket number 4 finished fourth. The greyhound wearing blanket number 7 was officially charted as having finished eighth. The 13th race on April 30, 1991, concluded at approximately 11:12 P.M. and was the last race of the evening. At approximately 11:25 P.M., Norman T. Campbell, the general manager of Biscayne Kennel Club, telephoned Respondent Crawford and asked that Respondent Crawford, Respondent May, and Mr. Culpepper meet him in his office. This request from Mr. Campbell was in response to a report he had received that three greyhounds had been mis-identified when the greyhounds were blanketed under the supervision of the Paddock Judge immediately prior to the running of the 13th race. The three greyhounds that had been reportedly mis-identified were: NY DAMASCUS, STRIDDEN RITE, and MPS SEBASTION. The following trainers attended the meeting in Mr. Campbell's office that followed the 13th race: Maggie Spears, the trainer of STRIDDEN RITE; Joel Fries, the trainer of NY DAMASCUS; and Jeanne Ertl, the trainer of MPS SEBASTION. These three trainers were in agreement that their three greyhounds had been mis-identified. These three trainers agreed that the following errors occurred: (1) NY DAMASCUS was assigned the fifth post, but was wearing blanket number 7; (2) STRIDDEN RITE was assigned the sixth post, but was wearing blanket number 5; and (3) MPS SEBASTION was assigned the seventh post, but was wearing blanket number 6. These three trainers agreed that the official results were in error as follows: (1) NY DAMASCUS officially finished second, but he actually finished eighth, twenty lengths off the pace; (2) STRIDDEN RITE officially finished third, but he actually finished second by a nose; and (3) MPS SEBASTION officially finished eighth, but he actually finished third. The three trainers were in agreement that the prize money going to the trainer/owner of the greyhound should be redistributed to reflect the actual finish of the race. Instead of second place money, the trainer of NY DAMASCUS agreed to take nothing. Instead of third place money, the trainer of STRIDDEN RITE received second place money. Instead of no money, the trainer of MPS SEBASTION received third place money. The decision was made at the meeting of April 30, 1991, to redistribute the prize money awarded to the trainer/owner consistent with the agreement of the trainers. BISCAYNE KENNEL CLUB was closing and the public had disbursed by the time the alleged mis-blanketing was reported to Mr. Campbell. By the time the racing officials were made aware of the alleged mis-blanketing on the night of April 30, 1991, it was too late to recall the official results or to redistribute the payoff that had been made to the public pursuant to the official results that had been posted. In addition to the three trainers, the other persons in attendance at the meeting in Mr. Campbell's office following the 13th race on April 30, 1991, were: Mr. Campbell, Respondent Crawford, Respondent May, Mr. Culpepper, Kay Spitzer, and Jerry Escriba. Ms. Spitzer was the president of Biscayne Kennel Club. Mr. Escriba was acting in the capacity as the Paddock Judge. Mr. Escriba was not, as of April 30, 1991, licensed by Petitioner to act in the capacity as Paddock Judge. Mr. Escriba had attempted to become licensed, but had been unable to do so because Petitioner was temporarily out of the forms necessary to process the application. However, the Division Director of the Division of Pari-Mutuel Wagering had given his permission for Mr. Escriba to serve as Paddock Judge for the meet at Biscayne Kennel Club that included the races on April 30, 1991. While Mr. Escriba had not previously served as a Paddock Judge, he was qualified by experience and training to serve in that capacity. Mr. Escriba had participated in pari-mutuel events for approximately 13 years and had held a variety of positions all related to the management and control of racing greyhounds. Mr. Escriba had observed the Paddock Judge perform his duties on thousands of occasions. Before Mr. Escriba was assigned the position of Paddock Judge, he was subjected to a two week training period under the supervision of Respondent Crawford and a former experienced Paddock Judge named Chris Norman. Respondent Crawford and Respondent May knew Mr. Escriba well and had confidence in his abilities. The Paddock Judge is a racing official who has the responsibility to ensure that the greyhounds participating in a pari-mutuel event are properly identified and that each greyhound runs its assigned race in its assigned post position. The Paddock Judge, in keeping with his responsibilities, is required to engage in a series of examinations of each greyhound which are designed to ensure proper identification. Each greyhound has what is referred to as a "Bertillon card", which contains measurements, markings, and other identifying information unique to each greyhound. The Paddock Judge also examines the greyhound identification tattoo which is inscribed upon the ear of each greyhound. After the Paddock Judge completes the identifying process, a tag which designates the race and the post position in which the greyhound is to participate is placed upon the greyhound's collar. Just prior to the race, when a greyhound that is about to race is on the viewing stand, the Paddock Judge executes his final check by ensuring that the tag upon the greyhound's collar corresponds to the race and the blanket number that has been assigned to the greyhound. At the meeting of April 30, 1991, and at the formal hearing, Mr. Escriba adamantly maintained that the alleged mis-blanketing of the greyhounds had not occurred. Mr. Escriba maintained that all identifying procedures had been properly followed and that the trainers were mistaken. Mr. Escriba's only explanation as to how such an alleged mis-identification could have occurred was that he was operating shorthanded, with only twelve leadouts instead of the usual complement of sixteen. Mr. Escriba asserted at the hearing that the twelve leadouts were enough to perform the work. Mr. Culpepper had little doubt after the meeting in Mr. Campbell's office broke up in the early morning hours of May 1 that the mis-identification had occurred and he believed that Mr. Escriba had not followed the rigid identification procedures. Because it was too late to redistribute the pay out to the public and because there was a conflict between the trainers and the Paddock Judge as to what had happened, Respondent Crawford, Respondent May, and Mr. Culpepper decided that the best course of action was to seek guidance from the highest state official available by telephone. The official contacted was Allen P. Roback, the Regional Supervisor of the Bureau of Operations of the Divisions of Pari-Mutuel Wagering. Mr. Roback had general supervisory authority over the operation of Biscayne Kennel Club and direct supervisory authority over the Respondents. Mr. Roback was contacted by telephone shortly after midnight, in the early morning hours of May 1, 1991. During the telephone call in the early morning hours of May 1, 1991, Mr. Roback talked with Mr. Campbell and Mr. Culpepper. Mr. Roback instructed them that the matter of the 13th race should be handled in the same manner as an incident generally referred to as the "photo finish" incident. The "photo finish" incident occurred at Biscayne Kennel Club in December of 1990 during a race for which Mr. Roback served as the Division Judge, Respondent Crawford served as the presiding Judge, and Respondent May served as the Associate Judge. Following the subject race, the judges declared the official results relating to the first and second place winners. A photo of the finish was provided the judges approximately eight minutes after the race concluded and revealed that the greyhound that had been declared the first place winner had actually been beaten by the greyhound that had been declared the second place finisher. Notwithstanding the undisputed photographic evidence that the official results were wrong, it was decided by the judges that the official results would not be changed. The pari-mutuel pay out to the public was made on the basis of the official results. However, the prize money to the trainers/owners of the greyhounds was distributed based on the actual finish of the first and second greyhounds as revealed by the photograph. Mr. Roback had been clear in his instruction not to change the official results following the "photo finish" incident. The two greyhounds that finished first and second in that race continued to race thereafter with their respective performance lines as indicated by the official and not the actual order of finish. After Mr. Culpepper had spoken with Mr. Roback, Respondent Crawford and Respondent May were advised that the Division of Pari-Mutuel Wagering would be conducting an official investigation into the events surrounding the conduct of the 13th race at Biscayne Kennel Club on April 30, 1991. Respondent Crawford and Respondent May were not directed to change the official results of the 13th race, nor were they told to withhold the three greyhounds involved in the dispute from further participation in pari-mutuel events pending the investigation. Respondent Crawford and Respondent May reasonably believed that the official results of the 13th race were final until otherwise notified by the Division of Pari-Mutuel Wagering. On May 1, 1991, during normal business hours, the alleged mis- blanketing incident was assigned to Marilyn (Lyn) Farrell for investigation. Ms. Farrell is an investigator for Petitioner's Bureau of Investigations. One of Ms. Farrell's assignments was to make a determination of the actual order of finish of the 13th race. Ms. Farrell's investigative report was completed on May 9, 1991. In that report, Ms. Farrell correctly concluded that the mis- blanketing of the three greyhounds had occurred, that the official results were wrong, and that the actual order of finish was that agreed to by the three trainers of the greyhounds involved. Mr. Roback and Ms. Farrell each visited Biscayne Kennel Club during the course of the investigation. Mr. Roback first spoke with Gary Duell, the Racing Secretary, who told him to talk with Respondent Crawford. Respondent Crawford asked Mr. Roback how much trouble he was in and asked him to meet with Mr. Campbell. While the investigation was pending, Mr. Escriba told Respondent Crawford that on April 13 there was confusion in the area where the greyhounds who were to run the 13th race were being blanketed. Mr. Escriba said that he panicked and released the greyhounds to the track before checking all of their tags when the bell for the 13th race rang. Respondent Crawford passed this information on to Mr. Roback. There was no discussion between Mr. Roback and the Respondents as to whether the racing lines should differ from the official results of the race. In the period between April 30, 1991, the date of the incident, and May 9, 1991, the date Ms. Farrell completed her investigation, NY DAMASCUS, MPS SEBASTION, and STRIDDEN RITE continued to participate at pari-mutuel events at Biscayne Kennel Club. A racing line for each greyhound scheduled to run in a pari-mutuel event is published in the event's program. The program is distributed to the public. Members of the public then use the information contained in the racing line to determine their bets. A racing line gives certain information pertaining to the greyhound, including the greyhound's recent performance history. Because the information is used to formulate wagers, it is important that the information is accurate. The chart writer is the official with direct responsibility for the accuracy of the racing lines. The chart writer at Biscayne Kennel Club at the times pertinent to this proceeding was Mildred A. Ketchum. At Biscayne Kennel Club on May 3, 1991, MPS SEBASTION participated in the 6th race, STRIDDEN RITE participated in the 10th race, and NY DAMASCUS participated in the 15th race. The racing line for each of these greyhounds contained in the official racing program published by Biscayne Kennel Club for the races held May 3, 1991, charted the performance of that greyhound in the 13th race for April 30, 1991, consistently with the official results that had been posted following the race. At Biscayne Kennel Club on May 7, 1991, MPS SEBASTION participated in the 4th race. The racing line for MPS SEBASTION contained in the official racing program published by Biscayne Kennel Club for the races held May 7, 1991, charted the performance of that greyhound in the 13th race for April 30, 1991, consistently with the official results that had been posted following the race. At Biscayne Kennel Club on May 8, 1991, STRIDDEN RITE participated in the 1st race. The racing line for STRIDDEN RITE contained in the official racing program published by Biscayne Kennel Club for the races held May 8, 1991, charted the performance of that greyhound in the 13th race for April 30, 1991, consistently with the official results that had been posted following the race. On May 9, 1991, John Pozar, Petitioner's Bureau Chief for the Bureau of Investigation, called Respondent Crawford, indicated that the investigation had confirmed that the mis-identification had occurred, and instructed him to scratch NY DAMASCUS from a race that was scheduled for later that day. Mr. Pozar also instructed Respondent Crawford to change the racing lines for the three greyhounds to reflect their correct performances on April 30, 1991. This was the first direction from Petitioner as to the results of the investigation or as to the action that should be taken. Respondents took immediate action to comply with Mr. Pozar's instructions. The correct performance lines for NY DAMASCUS, STRIDDEN RITE, and MPS SEBASTION in the 13th race at Biscayne Kennel Club did not appear in any Biscayne Kennel Club Program until May 11, 1991. Respondent Crawford, Respondent May, and Mr. Culpepper, as the three judges, had supervisory responsibility and authority over the chart writer and could have ordered her to change the performance lines for the three greyhounds involved in the incident of April 30, 1991, at any time between April 30 and May 9. The three judges did not act to change the performance lines between April 30 and May 9 in deference to the investigation being conducted by Petitioner's investigators. In the matinee program for May 11 for the 12th race, the racing line for NY DAMASCUS accurately reflects that it finished eighth in the 13th race on April 30, 20 lengths off the pace. In contrast, the racing lines for NY DAMASCUS contained in the May 3 program erroneously reflected that NY DAMASCUS finished second by a nose. In the evening program for May 11 for the 13th race, the racing line for STRIDDEN RITE accurately reflects that it finished second by a nose on April In contrast, the racing lines for STRIDDEN RITE contained in May 3 and May 8 programs erroneously reflected that STRIDDEN RITE finished third. In the evening program for May 11 for the 2nd race, the racing line for MPS SEBASTION accurately reflects that it finished third, five lengths off the pace, on April 30. In contrast, the racing lines for STRIDDEN RITE contained in May 3 and May 7 programs erroneously reflected that MPS SEBASTION finished eighth, twenty lengths off the pace. Petitioner has adopted no rule which establishes the circumstances under which racing lines can vary from official results in a case such as this. The three judges have to use their judgment as to the appropriate course of action to take in resolving a charge of mis-blanketing. Official results of a race are not to be overturned by the judges in the absence of competent, substantial evidence that the official results are wrong. The record of this proceeding did not establish that these Respondents failed to act within the scope of their discretion in deferring to the investigation by Petitioner. Likewise, the record fails to establish that the Respondents failed to exercise their supervisory authority and responsibility by waiting to change the racing lines until after the official investigation was completed.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered which dismisses the administrative complaint brought against Respondent, Robert C. Crawford, in Case No. 91-6682 and which dismisses the administrative complaint brought against Respondent, Robert E. May, in Case No. 91-8107. DONE AND ORDERED this 29th day of July, 1992, 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 29th day of July, 1992.
The Issue The Petitioner has accused the Respondent, Frank Rudolph Solimena, with a violation of Rule 7E-1.06(11)(a), Florida Administrative Code, which reads: The running of a horse in a race with any narcotic, stimulant, depressant or local anesthetic is prohibited. If the stewards shall find that any narcotic, stimulant, depressant or local anesthetic has been administered or attempted to be administered, internally or externally, to a horse before a race, such stewards shall impose such punishment and take such other action as they may deem proper under any of the rules, including reference to the Division, against every person found by them to have administered, or to have attempted to administer, or to have caused to be administered, or to have caused an attempt to administer, or to have conspired with another person to administer, such narcotic, stimulant, depressant or local anesthetic. If the Division laboratory shall find a positive identification of such medication, such finding shall constitute prima facie evidence that such horse raced with the medication in its system. Under the accusation, the Respondent is made responsible pursuant to the provisions of Rule 7E-1.18(3), Florida Administrative Code, referred to herein as the absolute insurer's rule, which provides that: The trainer shall be responsible for, and be the insurer of the condition of the horses he enters. Trainers are presumed to know the rules of the Division. Specifically, Respondent Solimena is accused under facts that allege that on November 29, 1978 a horse trained by the Respondent was entered and ran in the sixth (6th) race at Tropical Park, Inc. (at Calder Race Couse). Subsequent to the race a urine specimen was taken from the horse and the specimen was analyzed by the Petitioner's laboratory. It is further alleged that the Division of Pari-Mutuel Wagering laboratory reported the results of the test and that the report showed that the urine sample contained Despropionyl Fentanyl, which is classified as a derivative of Fentanyl, a narcotic compound.
Findings Of Fact This cause comes on for consideration based upon a Notice to Show Cause (Administrative Complaint) filed by the Petitioner, State of Florida, Department of Business Regulation, Division of Pari-Mutuel Wagering, against Frank Rudolph Solimena. At all times pertinent to the Notice to Show Cause, Frank Rudolph Solimena was the holder of license Nos. K-00257 and 5-00863, issued by the Petitioner to the Respondent, Frank Rudolph Solimena, enabling Solimena to operate as horse trainer and horse owner, respectively, at the several race tracks located in the State of Florida. The Petitioner, State of Florida, Department of Business Regulation, Division of Pari-Mutuel Wagering, is an agency of the State of Florida charged with the duty of the regulation of, among other things, the matters pertaining to thoroughbred horse racing in the State of Florida. The authority for such regulation is found in Chapter 550, Florida Statutes, and those rules promulgated to enforce the provisions of that chapter. Within that body of rules, are Rules 7E-1.06(11)(a) and 7E-1.18(3), Florida Administrative Code, alluded to in the issues statement of this Recommended Order. Those rules as set out in the issues statement shall serve as a basis for determining the facts and reaching the legal conclusions necessary to formulate a decision in this matter and official recognition is taken of the aforementioned rules. The facts in this case show that the Respondent, Frank Rudolph Solimena, was acting as a horse trainer on December 4, 1978, at Tropical Park, Inc., in Florida. On that date, Carpe Diem, a horse trained by the Respondent, ran in the second race and finished in first position. Following the race, and on the same date, a urine specimen was taken from the horse, Carpe Diem. That urine specimen was subsequently analyzed through a series of tests and the test directed to the urine sample revealed a positive identification of a substance known as Dispropionyl Fentanyl, which is classified as a derivative of Fentanyl, a narcotic. The process which occurred in Carpe Diem after he received the Fentanyl, was that the Fentanyl was metabolized in the horse's system to become Dispropionyl Fentanyl, and that latter substance acted as a central nervous system stimulant in the horse during the course of the race. The narcotic, Fentanyl, carries the trade name, Sublimaze. The horse referred to above was under the care and treatment of Carl J. Meyer, D.V.M., on the date of the race in question. In addition to treating this horse that is the subject of this complaint, Dr. Meyer had treated other horses for which the Respondent was the trainer, beginning in 1976 and continuing through December, 1978. One of the conditions for which the disputed horse and other horses trained by the Respondent reportedly received treatment was a condition described by Dr. Meyer as Myopathy. 1/ This treatment form was administered to Carpe Diem on the date of the disputed race event. According to Dr. Meyer, Myopathy is a treatment for muscle soreness and is a type acupuncture in which needles are injected at pressure points over the sore muscles and authorized medications are injected into those muscle areas, to include ACTH, Stroids and Lasix. When the Respondent received one of the billing statements from Dr. Meyer which indicated that horses that were being trained by the Respondent had been treated for Myopathy, the Respondent inquired of Dr. Meyer what Myopathy treatments consisted of. Dr. Meyer at that point told the Respondent that you take a needle and put it in certain pressure points in the muscle to relieve bursitis and/or pressure. When questioned in the course of the hearing about further details of the treatment for Myopathy, Dr. Meyer was unable to give a satisfactory explanation of the origins of the treatment for Myopathy and literature related to that treatment which might have been published through research in veterinary medicine. Within the same time frame that Dr. Meyer claimed to be treating the subject horse for Myopathy, he had purchased the substance, Sublimaze, and by his testimony stated that this narcotic had been used on horses other than the one involved in this accusation. The use in the unrelated group of horses was as a pre-anesthetic agent and to treat colic conditions. He claimed to use 18 milligrams as a pre-anesthetic dose and as much as 25 milligrams over a period of time to control the colic condition. The utilization of Sublimaze as a pre-anesthetic agent and for treatment for colic was disputed in the course of the bearing by the testimony of Dr. George Maylin, D.V.M., who also has a Ph.D. in pharmacology. At the time Dr. Maylin gave his testimony, he was an associate professor of toxicology at the New York State College of Veterinary Medicine, Cornell University, Ithica, New York. Dr. Maylin has done extensive research on the effect of Sublimaze as a pre-anesthetic agent and concludes that it is not a predictable anesthetic agent, and that a 10 milligram dosage would not have a desired effect in the use of pre-anesthetic cases. In Dr. Maylin's opinion, 50 milligrams would be the indicated amount. In addition, Dr. Maylin's extensive testing of Sublimaze in a colic model situation pointed out the ineffectiveness of Sublimaze as an analgesic in those colic cases. Finally, Dr. Maylin does not believe that 25 milligrams of Sublimaze over an extended period of time could be effective in treating the colic condition. Other trainers had horses which had been treated by Dr. Meyer around the same time period as the horse of the Respondent, which is the subject of this hearing. Those trainers are Ohayneo Reyes and Edward E. Plesa. Both Reyes and Plesa questioned Dr. Meyer on the subject of Meyer injecting Sublimaze in their race horses. Those questions were asked following accusations placed against those trainers for violations similar to those in the current case of the Respondent. The answers given to Reyes and Plesa by Dr. Meyer indicated that he had in fact injected the horses with Sublimaze, but he told them not to worry because the substance could not be detected. Dr. Meyer also testified in the course of the hearing that he had placed wagers on some of the horses being treated for Myopathy. An analysis of the evidence leads to the factual conclusion that Dr. Meyer infused Carpe Diem, for which the Respondent stands accused through this Notice to Show Cause, with Sublimaze, otherwise identified as Fentanyl, and that he gave those injections under the guise of a treatment for Myopathy, when in fact the so-called treatment for Myopathy was a ruse to enable Dr. Meyer to administer the Sublimaze. This act by Dr. Meyer directed to the horse of the Respondent involved in this accusation, was unknown to the Respondent at the time the injection was administered and nothing that had transpired prior to this placed Respondent in the position of having reason to believe that Dr. Meyer was pursuing this course of conduct. In summary, although the horse in question ran in the subject race while under the effects of Fentanyl, metabolized to become Dispropionyl Fentanyl, it was not through an act of the Respondent.
Recommendation It is recommended that the action through the Notice to Show Cause against the Respondent, Frank Rudolph Solimena, be DISMISSED. DONE AND ENTERED this 10th day of September, 1979, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32381 (904) 488-9675
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.
