The Issue Should Respondent's Law Enforcement Certificate be revoked, suspended, or otherwise disciplined?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: The Commission is the agency of the State of Florida charged with the responsibility for the certification and de- certification of law enforcement officers. At all times pertinent to this proceeding, Respondent was a certified law enforcement officer having been certified by the Commission on January 24, 1992, and issued law enforcement certificate number 20445. At all times pertinent to this proceeding, Respondent was employed by the Cape Coral, Florida Police Department (CCPD). As a certified law enforcement officer, Respondent is sworn to uphold the laws of the State of Florida, in both an on-duty and off-duty capacity, and must follow a personal code of conduct which precludes the use of marijuana in an on-duty or off-duty capacity. Respondent was aware at the time he was hired by the CCPD that law enforcement officers had to abide by the Drug Free Workplace standards. As part of the biannual physical examination required by the CCPD, the Respondent, on June 4, 1999, presented to the Lee Memorial Health Systems, a/k/a Lee Convenient Care, a Collection Site as defined in Rule 59A-24.003(4), Florida Administrative Code, for the purpose of giving a urine specimen for drug testing. Strict procedures were followed in the collection of Respondent's urine specimen taken on June 4, 1999, in order that the integrity and chain of custody of the specimen were maintained. Respondent's urine specimen taken on June 4, 1999, was collected, identified, and forwarded to Diagnostic Services Inc., d/b/a DSI Laboratories (DSI) in accordance with the procedure set forth in Section 112.0455(8), Florida Statutes, and Rule 59A-24.005, Florida Administrative Code, for the purpose of testing for drugs. DSI is a Forensic Toxicology Laboratory as that term is defined in Rule 59A-24.003(8), Florida Administrative Code, and is a certified, state and federally-licensed forensic toxicology laboratory which conducted the tests of Respondent's urine specimen taken on June 4, 1999. Respondent's urine specimen given on June 4, 1999, was given Specimen ID No. 11A, 292409 and Laboratory Accession No. 99- 157-0716. When urine is tested for the presence of marijuana, a positive result is indicated when the nanogram level of cannabinoids, or THC, reaches a level of 50 or higher on the initial screening, or immunoassay test. Rule 59A- 24.006(4)(e)1, Florida Administrative Code. If the immunoassay test is positive, the sample is subjected to a much more specific test, the Gas Chromatography/Mass Spectrometry (GCMS) test. A result of a nanogram level of 15 or higher is a positive test result for the presence of cannabinoids or THC. Rule 59A-24.006(4)(f)(1), Florida Administrative Code. The establishment of the cut-off levels on the immunoassay or GCMS tests eliminates any possibility of positive test results due to accidental ingestion. Respondent's urine specimen of June 4, 1999, was first subjected to the immunoassay test which reported a level of 169 nanograms of THC in Respondent's urine. Respondent's urine sample was then subjected to the GCMS test which reported a result of the presence of 37 nanograms of THC in Respondent's system. Elizabeth Burza, n/k/a Elizabeth Brunelli, the certifying scientist on the two tests conducted on Respondent's urine specimen of June 4, 1999, reviewed and approved the integrity of the chain of custody, that the machines used to test the specimen were operating correctly, and the accuracy of the positive result for cannabinoids in Respondent's system. On June 8, 1999, Ms. Brunelli certified that urine specimen number 11A-292409 tested positive for presence of cannabinoids. The urine specimen number and laboratory accession number were that of Respondent's urine specimen submitted on June 4, 1999. Abel Natali, M.D. was the Medical Review Officer of the tests conducted on the urine specimen number 11A-292409 submitted by Respondent on June 4, 1999. On June 9, 1999, Dr. Natali reviewed and approved the testing procedures and results thereof. Dr. Natali confirmed the conclusions of Ms. Brunelli that the test results as to specimen number 11A, 292409 did not reflect abnormality, and accurately reflected a positive reading of 37 nanograms of THC, cannabinoids, in Respondent's system. On June 10, 1999, Dr. Natali telephoned Respondent to confirm that Respondent had tested positive for cannabinoids. Dr. Natali inquired of Respondent as to any valid reason for the positive test for marijuana, such as: (1) was there a possibility that medical research had exposed Respondent to marijuana and; (2) had Respondent ingested any prescription or over-the-counter drugs which may have contained marijuana. The purpose of these questions was to allow the tested person to admit or deny use, and to allow the Medical Review Officer to follow up on valid explanations for exposure controlled substances. Respondent told Dr. Natali that he had been exposed to marijuana at a party where people were smoking marijuana and that he had smoked marijuana. However, during his testimony at the hearing, Respondent could not recall making that statement to Dr. Natali, and denied smoking marijuana at the party. Dr. Natali advised Respondent that he would be reporting the positive test results for marijuana to his supervisor, and that Respondent could request a retest. Respondent did not request a retest. On June 10, 1999, the positive test results for marijuana were reported to Lieutenant Everly, CCPD. Subsequently, on June 10, 1999, Lieutenant Everly and Lieutenant Furderer requested that Respondent submit another urine sample for testing. Although Respondent was not told that failure to submit another urine specimen would result in his termination from CCPD, he was advised that failure to submit another urine specimen could possibly result in his termination from the CCPD. Respondent agreed to the submission of a second urine specimen, and on June 10, 1999, Lieutenant Furderer transported Respondent to DSI Laboratories where Respondent submitted another urine specimen for testing. The collection and testing of the second urine specimen submitted by Respondent on June 10, 1999, and identified as 11A, 303243, was handled in accordance with the rules and statutes governing the collection and testing of urine specimens for the purpose of determining the presence of illegal drugs in the person's system. Ms. Brunelli, certifying scientist, certified the results of the two tests conducted on Respondent's second urine specimen identified as number 11A,303243. Ms. Brunelli certified specimen 11A, 303243 as being positive for the presence of cannabinoids on the immunoassay test at a level of 209 nanograms, and on the GCMS test at a level of 56 nanograms. Stephen I. Merlin, M.D., Medical Review Officer, reviewed and approved the collection and testing procedures used with Respondent's urine specimen submitted on June 10, 1999, and identified as 11A, 303243, and the positive results of the tests (a nanogram level of 209 for the immunoassay test and a nanogram level of 56 for the GCMS test) as reviewed and approved by Ms. Brunelli. Dr. Merlin informed Respondent that he had tested positive for cannabinoids, and inquired as to whether Respondent had taken any prescription drugs containing marinol, or if Respondent had been exposed to marijuana. Respondent replied in the negative. Respondent did not request a retest. Respondent's only explanation for the presence of cannabinoids in his system was the possible passive inhalation of marijuana smoke at a party in a motel room on the weekend prior to giving the first urine specimen on June 4, 1999. While passive inhalation of marijuana smoke under controlled conditions may possibly result in negigible amounts of cannabinoids being detected in a person's urine, Respondent failed to show that the conditions in that motel room were such that it would have resulted in passive inhalation of marijuana smoke by Respondent to the degree that his urine would have reflected, upon testing, even negigible amounts of cannabinoids, let alone the levels found in Respondent's urine. Respondent offered no evidence to demonstrate that he may have accidentally ingested marijuana during this period of time. Respondent's June 4, 1990, and June 10, 1999, urine specimens were disposed of on July 5, 2000. Prior to their disposal, Respondent did not contact anyone and request that the specimens be retain for retesting. Subsequent to being notified of the results of the second urine test, the CCPD terminated Respondent. However, after the CCPD held an informal hearing, CCPD reinstated Respondent. At the time of this hearing, Respondent was still working with the CCPD, apparently in an administrative capacity. Respondent presented no evidence of complete rehabilitation or substantial mitigating circumstances. The nanogram levels for cannabinoids reported for the initial and confirmation tests for the urine specimen given by Respondent on June 4, 1999, and the nanogram levels for cannabinoids reported for the initial and confirmation tests for the urine specimen given by Respondent on June 9, 1999, exceeded the nanogram levels for cannabinoids set out in Rule 59A-24.006(4)(e)1.(f)l., Florida Administrative Code, for positive testing.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Commission enter a final order revoking Respondent's Law Enforcement Certificate number 20445. DONE AND ENTERED this 12th day of January, 2001, in Tallahassee, Leon County, Florida. ___________________________________ WILLIAM R. CAVE 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) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of January, 2001. COPIES FURNISHED: Gabrielle Taylor, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489 Robert B. Burandt, Esquire 1714 Cape Coral Parkway, East Cape Coral, Florida 33904-9620 A. Leon Lowry, II, Program Director Division of Criminal Justice Professional Services Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue The issues are whether Respondent violated Section 550.2415(1)(a), Florida Statutes, by racing an animal that had Benzoylecgonine, a metabolite of Cocaine, in its body, and if so, what penalty should be imposed.
Findings Of Fact Petitioner is the state agency charged with regulating pari-mutuel wagering. At all times material to this proceeding, Respondent held a pari-mutuel wagering occupational license. His current license, No. 20713-1021, is effective until June 30, 2003. Orange Park Kennel Club is located in Duval County, Florida. Petitioner has authorized Orange Park Kennel Club to conduct greyhound racing and pari-mutuel wagering. At all times material to this proceeding, Respondent was the trainer of record for a racing greyhound named "WP's Wrangler." On Wednesday, March 13, 2002, Respondent entered "WP's Wrangler" in the fourth race of the matinee performance at Orange Park Kennel Club. "WP's Wrangler" finished fifth in that race. Immediately after the race, one of Petitioner's employees randomly selected "WP's Wrangler" for a urine test. The urine sample No. 847026, was collected and processed in accordance with established procedures. The urine sample was then sent to the University of Florida Racing Laboratory for analysis. When the laboratory received sample No. 847026, the laboratory staff assigned it a new number, laboratory No. 41734K. The laboratory staff had no information regarding the identity of the trainer or animal from which the sample was collected. Information identifying the trainer and the animal on Petitioner's DBPR Form 503, which is a log of samples collected and shipped to the laboratory, is redacted from the laboratory copy to protect the integrity of the testing process. The University of Florida Racing Laboratory tested the urine sample. Using gas chromatography/mass spectrometry, the laboratory determined that sample No. 847026/laboratory No. 41734K contained Benzoylecgonine, a metabolite of Cocaine. Cocaine is a topical anesthetic and a Class I drug under the Uniform Classification Guidelines for Foreign Substances, as promulgated by the Association of Racing Commissioners International. In a report dated April 12, 2002, the laboratory set forth its finding relative to sample No. 847026. Using the sample card created at the time that the urine sample was collected from "WP's Wrangler," Petitioner identified Respondent as trainer of record for "WP's Wrangler" on March 13, 2002. Cocaine or any derivative thereof is not a permissible substance to be carried in the body of a racing animal like "WP's Wrangler."
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED: That Petitioner enter a final order suspending Respondent's license for ten (10) days and imposing a $500 fine. DONE AND ENTERED this 9th day of January, 2003, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD 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 9th day of January, 2003. COPIES FURNISHED: Joseph M. Helton, Jr., Esquire Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-2202 Mark L. Smith 6043 Park Street Jacksonville, Florida 32205 David J. Roberts, Director Division of Pari-Mutuel Wagering Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-2202 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202
The Issue Whether Respondent raced animals that were impermissibly medicated or determined to have prohibited substances present, resulting in a positive test for such medications or substances in violation of section 550.2415(1)(a), Florida Statutes (2016),1/ as alleged in the administrative complaints; and, if so, the penalty that should be imposed.
Findings Of Fact The Parties Petitioner is the state agency charged with regulating pari-mutuel wagering in the state of Florida pursuant to chapter 550. Respondent is the holder of Pari-Mutuel Wagering Individual Occupational License No. 1572955-1021, which authorizes her to train greyhounds in Florida pursuant to section 550.105. Respondent has been licensed by Petitioner since 2009. At all times relevant to the charges at issue in these proceedings, Respondent was subject to chapter 550 and the implementing rules codified in Florida Administrative Code Chapter 61D-6. The Administrative Complaints As noted above, Petitioner served Respondent with four administrative complaints charging her with a total of seven counts of violating statutes and rules governing pari-mutuel racing by impermissibly medicating or administering prohibited substances to racing greyhounds for which she was the trainer of record for races held at the PBKC on specific dates between September 27, 2016, and January 28, 2017. DOAH Case No. 17-4870 On November 28, 2016, Petitioner filed with its clerk's office an administrative complaint consisting of two enforcement cases, DBPR Case Nos. 2016-049902 and 2016-051419. This administrative complaint was assigned DOAH Case No. 17-4870. Count I of this administrative complaint, DBPR Case No. 2016-049902, charges Respondent with having violated section 550.2415(1)(a) by racing greyhound ATASCOCITA ACURA, which was impermissibly medicated or determined to have a prohibited substance present resulting in a positive test for dimethyl sulfoxide. Count II of this administrative complaint, DBPR Case No. 2016-051419, charges Respondent with having violated section 550.2415(1)(a) by racing greyhound ATASCOCITA DALT, which was impermissibly medicated or determined to have a prohibited substance present resulting in a positive test for caffeine. DOAH Case No. 17-4871 On November 30, 2016, Petitioner filed with its clerk's office an administrative complaint consisting of two enforcement cases, DBPR Case Nos. 2016-053062 and 2016-053069. This administrative complaint was assigned DOAH Case No. 17-4871. Count I of this administrative complaint, DBPR Case No. 2016-053062, charges Respondent with having violated section 550.2415(1)(a) by racing greyhound ATASCOCITA EDGE, which was impermissibly medicated or determined to have a prohibited substance present resulting in a positive test for theobromine. Count II of this administrative complaint, also part of DBPR Case No. 2016-053062, charges Respondent with having violated section 550.2415(1)(a) by racing greyhound ATASCOCITA EDGE, which was impermissibly medicated or determined to have a prohibited substance present resulting in a positive test for theophylline. Count III of this administrative complaint, DBPR Case No. 2016-053069, charged Respondent with having violated section 550.2415(1)(a) by racing greyhound ATASCOCITA DALT, which was impermissibly medicated or determined to have a prohibited substance present resulting in a positive test for theobromine. DOAH Case No. 17-4872 On December 28, 2016, Petitioner filed with its clerk's office an administrative complaint consisting of one enforcement case, DBPR Case No. 2016-056707. This administrative complaint was assigned DOAH Case No. 17-4872. In this administrative complaint, Petitioner has charged Respondent with having violated section 550.2415(1)(a) by racing greyhound RCK MOHICAN, which was impermissibly medicated or determined to a prohibited substance present resulting in a positive test for caffeine. DOAH Case No. 17-4873 On February 16, 2017, Petitioner filed with its clerk's office an administrative complaint consisting of one enforcement case, DBPR Case No. 2017-006845. This administrative complaint was assigned DOAH Case No. 17-4873. In this administrative complaint, Petitioner has charged Respondent with having violated section 550.2415(1)(a) by racing greyhound ATASCOCITA HAPPY, which was impermissibly medicated or determined to have a prohibited substance present resulting in a positive test for caffeine. The Alleged Violations and Respondent's Defenses Racing Greyhound Urine Sample Collection and Testing PBKC is a facility operated by a permit holder authorized to conduct pari-mutuel wagering in Florida under chapter 550. Respondent trained and raced greyhounds at PBKC between September 27, 2016, and January 28, 2017, the time period relevant to these consolidated proceedings. All violations charged in the administrative complaints are alleged to have occurred at PBKC. To enforce the statutes and rules prohibiting the impermissible medication or administration of prohibited substances to racing greyhounds, Petitioner collects urine samples from racing greyhounds immediately before races in which they are participating. At the PBKC, urine samples from racing greyhounds are collected in a restricted area called the "ginny pit." Jessica Zimmerman, chief veterinary assistant for Petitioner, described Petitioner's urine sampling process. The samples are collected by veterinary assistants using clean cups that are unsealed immediately before being used to collect the samples. When each urine sample is collected, the veterinary assistant checks the identification number tattooed on the greyhound's ear and completes a PMW 503 form.5/ Here, the evidence establishes that the urine samples collected that have given rise to this proceeding were collected pursuant to this process.6/ The PMW 503 form shows the pari-mutuel wagering facility for which it was prepared——in these consolidated cases, for the PBKC——and lists the date, race, and post number of the greyhound; the greyhound's name and tattoo number; the time the sample was collected; the trainer's name; the collector's initials; and a unique sample number. Here, the completed PMW 503 forms and other evidence established that Respondent was the trainer of record for the following greyhounds that participated in specified races held on specific dates and from which urine samples were taken: ATASCOCITA ACURA, tattoo no. 6328024A, urine specimen no. 105889, twelfth race on September 27, 2016; ATASCOCITA DALT, tattoo no. 6407364C, urine specimen no. 108583, second race on October 15, 2016; ATASCOCITA EDGE, tattoo no. 65280114G, urine specimen no. 108633, ninth race on October 19, 2016; ATASCOCITA DALT, tattoo no. 6407364C, urine specimen no. 108304, tenth race on October 19, 2016; RCK MOHICAN, tattoo no. 65640124A, urine specimen no. 113568, eighth race on November 26, 2016; ATASCOCITA HAPPY, tattoo no. 65573124J, urine specimen no. 125184, ninth race on January 28, 2017. Once a urine sample has been collected, the container is sealed with tape to maintain the integrity of the sample, and a tag on which the sample number is written is attached to the container holding the collected urine sample.7/ The urine samples are placed in a freezer at a restricted area at Petitioner's office and held there until they are shipped to the University of Florida Racing Laboratory ("UF Lab")8/ for testing for the presence of impermissible medications or prohibited substances. Petitioner is in constant possession of the samples until they are shipped to the UF Lab. The containers in which the samples are shipped are securely locked. Here, the evidence established that urine specimen nos. 105889, 108583, 108633, 108304, 113568, and 125184 were collected, sealed, stored, and shipped to the UF Lab pursuant to the above-described protocol. Once the samples are received at the UF Lab, laboratory staff inspect the samples to ensure that the evidence tape has adhered to the sample cup, cross-check the sample numbers with those on the accompanying PMW 503 form, identify any discrepancies with respect to date and sample number and record them on a discrepancy form,9/ and log the samples into the Laboratory Information Management System. Thereafter, the samples are assigned an internal alphanumeric number and moved into a limited-access area, where they are stored while laboratory staff perform testing. The samples are stored in this area until they either are confirmed as positive for an impermissible medication or a prohibited substance——in which case they are moved to a specific freezer for storage——or confirmed as negative for a medication or prohibited substance and thereafter discarded. As part of the sample testing process, an aliquot is taken and tested for an impermissible medication or a prohibited substance. If the test initially indicates a positive result for an impermissible medication or a prohibited substance, a confirmatory test is performed to determine the quantity of the medication or substance in the sample. The confirmatory testing process entails running calibrated samples, positive controls to ensure that the extraction process was accurate, and negative controls to ensure that there is no carryover of the medication or substance through the confirmatory testing process. If the confirmatory testing process yields a positive result for an impermissible medication or prohibited substance, the documentation is subjected to a two-step supervisory review, followed by generation of a Report of Positive Result, which is transmitted to Petitioner. Here, the evidence establishes that urine specimen nos. 105889, 108583, 108633, 108304, 113568, and 125184 were logged, stored, and tested at the UF Lab pursuant to this protocol. The Association of Racing Commissioners International has adopted the Uniform Classification Guidelines for Foreign Substances ("ARCI Guidelines"). Classes range from class I drugs, which are stimulants without therapeutic value and are most likely to affect the outcome of a race, to class V drugs, which have the most therapeutic value and the least potential to affect the outcome of a race. Caffeine is a central nervous system stimulant and class II drug. Under rule 61D-6.007(3)(a), levels of caffeine at a urinary concentration less than or equal to 200 nanograms per milliliter are not reported to Petitioner as an impermissible medication or prohibited substance. Conversely, levels of caffeine at a urinary concentration greater than 200 nanograms per milliliter are reported to Petitioner as an impermissible medication or prohibited substance. Theobromine is a diuretic, smooth muscle relaxant, and class IV drug. Under rule 61D-6.007(3)(b), levels of theobromine at urinary concentrations less than or equal to 400 nanograms per milliliter are not reported to Petitioner as an impermissible medication or prohibited substance. Conversely, levels of theobromine at urinary concentrations greater than 400 nanograms per milliliter are reported to Petitioner as an impermissible medication or prohibited substance. Theophylline is a bronchodilator, smooth muscle relaxant, and class III drug. Under rule 61D-6.007(3)(b), levels of theophylline at urinary concentrations less than or equal to 400 nanograms per milliliter are not reported to Petitioner as an impermissible medication or a prohibited substance. Conversely, levels of theophylline at urinary concentrations greater than 400 nanograms per milliliter are reported to Petitioner as an impermissible medication or a prohibited substance. Dimethyl sulfoxide is an anti-inflammatory agent and class IV drug. Dimethyl sulfoxide is a non-threshold drug, which means that it is not permitted to be in a racing greyhound's body at any concentration. Therefore, the detection of any concentration of dimethyl sulfoxide in a urine sample is reported to Petitioner as an impermissible medication or a prohibited substance. Pursuant to section 550.2415(1)(c), the finding of a prohibited substance in a race-day specimen taken from a racing greyhound constitutes prima facie evidence that the substance was administered and was carried in the body of the animal while participating in the race. Urine Specimen Test Results Urine Specimen No. 105889 - ATASCOCITA ACURA As noted above, urine specimen no. 105889 was collected by Petitioner's veterinary assistant from ATASCOCITA ACURA, tattoo no. 6328024A, before the twelfth race on September 27, 2016. UF Lab gas chromatography-mass spectrometry testing of urine specimen no. 105889 showed a urine concentration of 210 micrograms per milliliter of dimethyl sulfoxide. The UF Lab prepared and transmitted to Petitioner a Report of Positive Result dated October 27, 2016, reporting this test result for urine specimen no. 105889. As discussed above, dimethyl sulfoxide is a non- threshold drug. Accordingly, the finding of 210 micrograms per milliliter of dimethyl sulfoxide in urine specimen no. 105889 establishes that ATASCOCITA ACURA carried an impermissible medication or a prohibited substance in its body during the twelfth race on September 27, 2016. Urine Specimen No. 108583 – ATASCOCITA DALT As noted above, urine specimen no. 108583 was collected by Petitioner's veterinary assistant from ATASCOCITA DALT, tattoo no. 6407364C, before the second race on October 15, 2016. UF Lab liquid chromatography-mass spectrometry testing of urine specimen no. 108583 showed a urine concentration of 4.343 +/- 0.03 micrograms per milliliter of caffeine. UF Lab liquid chromatography-mass spectrometry testing of urine specimen no. 108583 showed a urine concentration of 728 +/- 90 nanograms per milliliter of theobromine. UF Lab liquid chromatography-mass spectrometry testing of urine specimen no. 108583 showed a urine concentration of 1.578 +/- 0.08 micrograms per milliliter of theophylline. These concentrations exceed the non-reportable levels for each of these substances established in rule 61D-6.007(3). The UF Lab prepared and transmitted to Petitioner a Report of Positive Result dated October 27, 2016, reporting these test results for urine specimen no. 108583. The findings of urine concentrations of 4.343 +/- 0.03 micrograms per milliliter of caffeine, 728 +/- 90 nanograms per milliliter of theobromine, and 1.578 +/- 0.08 micrograms per milliliter of theophylline establish that ATASCOCITA DALT carried these impermissible medications or prohibited substances in its body during the second race on October 15, 2016. Notwithstanding that the test results for urine specimen no. 108583 showed the presence of theobromine and theophylline in ATASCOCITA DALT during the second race on October 15, 2016, at concentrations above the non-reportable levels established in rule 61D-6.007(3), Petitioner has not charged Respondent with violations related to the presence of these substances, and has only charged Respondent with one violation for the presence of caffeine above the non-reportable level during the second race on October 15, 2016. Urine Specimen No. 108633 – ATASCOCITA EDGE As noted above, urine specimen no. 108633 was collected by Petitioner's veterinary assistant from ATASCOCITA EDGE, tattoo no. 65280114G, before the ninth race on October 19, 2016. UF Lab liquid chromatography-mass spectrometry testing of urine specimen no. 108633 showed a urine concentration of 822 +/- 90 nanograms per milliliter of theobromine. UF Lab liquid chromatography-mass spectrometry testing of urine specimen no. 108633 showed a urine concentration of 625 +/- 80 nanograms per milliliter of theophylline. These concentrations exceed the non-reportable levels for each of these medications or substances established in rule 61D-6.007(3). The UF Lab prepared and transmitted to Petitioner a Report of Positive Result dated November 17, 2016, reporting these test results for urine specimen no. 108633. The findings of urine concentrations of 822 +/- 90 nanograms per milliliter of theobromine and 625 +/- 80 nanograms per milliliter of theophylline establish that ATASCOCITA EDGE carried these impermissible medications or prohibited substances in its body during the ninth race on October 19, 2016. Urine Specimen No. 108304 – ATASCOCITA DALT As noted above, urine specimen no. 108304 was collected by Petitioner's veterinary assistant from ATASCOCITA DALT, tattoo no. 6407364C, before the tenth race on October 19, 2016. UF Lab liquid chromatography-mass spectrometry testing of urine specimen no. 108304 showed a urine concentration of 534 +/- 90 nanograms per milliliter of theobromine. This concentration exceeds the non-reportable level for this substance established in rule 61D-6.007(3). The UF Lab prepared and transmitted to Petitioner a Report of Positive Result dated November 17, 2016, reporting this test result for urine specimen no. 108304. The finding of a urine concentration of 534 +/- 90 nanograms per milliliter of theobromine establishes that ATASCOCITA DALT carried this impermissible medication or prohibited substance in its body during the tenth race on October 19, 2016. Urine Specimen No. 113568 – RCK MOHICAN As noted above, urine specimen no. 113568 was collected by Petitioner's veterinary assistant from RCK MOHICAN, tattoo no. 65640124A, before the eighth race on November 26, 2016. UF Lab liquid chromatography-mass spectrometry testing of urine specimen no. 113568 showed a urine concentration of 8.532 +/- 0.03 micrograms per milliliter of caffeine. UF Lab liquid chromatography-mass spectrometry testing of urine specimen no. 113568 showed a urine concentration of 3.434 +/- 0.09 micrograms per milliliter of theobromine. UF Lab liquid chromatography-mass spectrometry testing of urine specimen no. 113568 showed a urine concentration of 8.374 +/- 0.08 micrograms per milliliter of theophylline. These concentrations exceed the non-reportable levels for each of these medications or substances established in rule 61D-6.007(3). The UF Lab prepared and transmitted to Petitioner a Report of Positive Result dated December 13, 2016, reporting these test results for urine specimen no. 113568. The findings of 8.532 +/- 0.03 micrograms per milliliter of caffeine, 3.434 +/- 0.09 micrograms per milliliter of theobromine, and 8.374 +/- 0.08 micrograms per milliliter of theophylline establish that RCK MOHICAN carried these impermissible medications or prohibited substances in its body during the eighth race on November 26, 2016. Notwithstanding that the test results for urine specimen no. 113568 showed the presence of theobromine and theophylline in RCK MOHICAN during the eighth race on November 26, 2016, at concentrations above the non-reportable levels established in rule 61D-6.007(3), Petitioner has not charged Respondent with violations related to the presence of these medications or substances, and has only charged Respondent with one violation for the presence of caffeine above the non- reportable level during the eighth race on November 26, 2016. Urine Specimen No. 125184 – ATASCOCITA HAPPY As noted above, urine specimen no. 125184 was collected by Petitioner's veterinary assistant from ATASCOCITA HAPPY, tattoo no. 655731245, before the ninth race on January 28, 2017. UF Lab liquid chromatography-mass spectrometry testing of urine specimen no. 125184 showed a urine concentration greater than 1.25 micrograms per milliliter of caffeine. UF Lab liquid chromatography-mass spectrometry testing of urine specimen no. 125184 showed a urine concentration of 988 +/- 90 nanograms per milliliter of theobromine. UF Lab liquid chromatography-mass spectrometry testing of urine specimen no. 125184 showed a urine concentration of 2.129 +/- 0.08 micrograms per milliliter of theophylline. These concentrations exceed the non-reportable levels for each of these substances established in rule 61D-6.007(3). The UF Lab prepared and transmitted to Petitioner a Report of Positive Result dated February 10, 2017, reporting these test results for urine specimen no. 125184. The findings of urine concentrations of greater than 1.25 micrograms per milliliter of caffeine, 988 +/- 90 nanograms per milliliter of theobromine, and 2.129 +/- 0.08 micrograms per milliliter of theophylline establish that ATASCOCITA HAPPY carried these impermissible medications or prohibited substances in its body during the ninth race on January 28, 2017. Again, it is noted that notwithstanding that the test results for urine specimen no. 125184 showed the presence of theobromine and theophylline in ATASCOCITA HAPPY during the ninth race on January 28, 2017, at concentrations above the non- reportable levels established in rule 61D-6.007(3), Petitioner has not charged Respondent with violations related to the presence of these medications or substances, and has only charged Respondent with one violation for the presence of caffeine above the non-reportable level during the ninth race on January 28, 2017. Respondent's Defenses Respondent denied having administered any impermissible medications or prohibited substances to the racing greyhounds that are the subject of these proceedings. Respondent also questioned, on three grounds, the accuracy of the test results showing the presence of impermissible medications or prohibited substances in the greyhounds that are the subject of these proceedings. First, Respondent disputes whether the urine specimens that yielded the positive test results were taken from the greyhounds that are the subject of these proceedings. She noted that under Petitioner's previous practice, when a urine sample was taken from a dog, the trainer was able to be present to verify that the animal from which the sample was collected was trained by him or her. She testified that now, under Petitioner's current sampling practice, the trainer is not able to be present so cannot verify the identity of the animal from which the sample is taken. This argument is not persuasive.10/ As previously discussed, Zimmerman described the process by which urine samples are collected from racing greyhounds for prohibited substances testing. As part of the urine sampling protocol, the identity of the greyhound from which the sample is collected is determined pursuant to an identification number tattooed on the dog's ear and that identification number is recorded both on the PMW 503 form and on the urine sample card that is transmitted to the UF Lab for testing. As previously noted, the evidence shows that this protocol was followed in collecting urine samples from the racing greyhounds that are the subject of these proceedings. Apart from mere conjecture,11/ Respondent did not present any evidence to show that the urine specimens for which positive test results were obtained were not collected from the greyhounds specifically identified herein, on the dates and at the times pertinent to these proceedings. Respondent presented evidence to show that conditions at the PBKC made it possible for racing greyhounds to ingest foods and beverages that could cause urine specimens from those animals to test positive for impermissible medications or prohibited substances. Specifically, Respondent testified that foods, such as chocolate, and beverages, such as coffee, sodas, and Red Bull, are available to purchase at the PBKC; that PBKC personnel consume these foods and beverages at many locations within the facility; that these foods and beverages are often left unattended in areas where they are accessible to the racing greyhounds; and that the greyhounds sometimes consume these foods and beverages. Jamie Testa corroborated Respondent's testimony. She echoed that PBKC personnel consume food and beverages in the PBKC facility and leave unfinished food and beverages in various locations, including in the weigh-in area, that are accessible to the greyhounds. She recounted one occasion on which she observed a veterinarian at the PBKC spill coffee and not clean up the spill, leaving it accessible for consumption by greyhounds. She described these conditions at PBKC as pervasive and continuing. In her words, "it's not just from one day. It's every day." On cross-examination, Testa acknowledged that greyhounds are muzzled during the weigh-in process, although she nonetheless asserted that this "doesn't mean that the dogs cannot pick up anything that's on the ground." However, she conceded that she did not witness the greyhounds that are the subject of these proceedings consuming food or beverages during the weigh-in or at any other times on the dates and at the times relevant to these proceedings. Arthur Agganis also corroborated Respondent's testimony that PBKC personnel often consume food and beverages in close proximity to the racing greyhounds, and that food and coffee is sometimes spilled on the ground. Agganis testified that on one occasion he observed a greyhound eat food off of the ground. On cross-examination, Agganis acknowledged that he did not witness any food or spilled coffee at the PBKC on the dates relevant to these proceedings. Respondent also presented an exhibit consisting of eight photographs ostensibly taken inside the PBKC.12/ The photographs depict vending machines from which chocolate bars and other snacks and sodas can be purchased, employees eating food, and unattended soda containers and beverage cups placed on tables and on the floor. On cross-examination, Respondent acknowledged that she took some, but not all, of the photographs, and some of the photographs were provided to her by other persons. She did not identify which photographs she took and which were provided to her by other persons. She also did not identify the specific locations within the PBKC facility in which the photographs ostensibly were taken; she did not identify the persons who took the photographs; and she did not present any testimony by these persons to establish that the photographs were, in fact, taken in the PBKC or that they accurately depict conditions within the PBKC. She also did not present any evidence establishing that the photographs were taken on the dates and at the times when the greyhounds that are the subject of these proceedings raced. In fact, she acknowledged that none of the photographs were taken on those dates, but instead were taken during a timeframe spanning from three months to one week before the final hearing. Respondent's argument that the positive test results are due to the greyhounds that are the subject of these proceedings having ingested foods or beverages at the PBKC rather than having been purposely administered those substances, is unpersuasive. Respondent did not present any evidence to show that the conditions described in Testa's and Agganis' testimony or portrayed in the photographs accurately depicted the conditions present at the PBKC on the specific dates and at the specific times during which the greyhounds that are the subject of these proceedings raced. Most important, even if the evidence showed that these conditions existed at the PBKC on the dates and at the times the greyhounds that are the subject of these proceedings raced, no evidence was presented showing that the greyhounds actually ingested anything at the PBKC that may have caused the positive test results. To the contrary, Respondent, Testa, and Agganis all acknowledged that they did not witness the greyhounds that are the subject of these proceedings ingest any foods or beverages at the PBKC on the dates and at the times pertinent to these proceedings. Respondent also argues that the urine samples taken from the greyhounds that are the subject of these proceedings could have been collected in contaminated containers, resulting in false positive test results for impermissible medications or prohibited substances. Specifically, Respondent testified: "I was able to see two people, like the females from the State, the ones who do——who collect the urine with their coffee cup." Testa also testified that on occasion, she observed veterinary assistants collecting urine samples by placing a urine sample collection cup on the sand in the ginny pit, which could cause cross-contamination of the urine sample. Respondent's testimony that she observed Petitioner's veterinary assistants collect urine samples from greyhounds using coffee cups is neither credible nor persuasive. In fact, Respondent herself testified that trainers do not have access to the ginny pit, so are unable to observe the urine collection process. These contradictions render Respondent's testimony incredible. Further, there is no evidence showing that Petitioner's veterinary assistants placed the urine collection cups on the sand in the ginny pit when collecting urine samples from the greyhounds that are the subject of the proceedings on the pertinent dates and at the pertinent times. Rather, the evidence establishes that Petitioner's veterinary assistants consistently follow an established protocol in collecting urine specimens for testing, which includes using clean, sealed cups that are unsealed immediately before the sample is collected, and then resealed with evidence tape and tagged with the sample number. The credible, persuasive evidence shows that Petitioner's veterinary assistants followed this protocol in collecting the urine samples from the greyhounds that are the subject of this proceeding on the dates and at the times pertinent to these proceedings. There is no credible, persuasive evidence showing that this protocol was not followed by Petitioner's veterinary assistants in collecting the urine samples from the greyhounds that are the subject of this proceeding on the dates and at the times pertinent to this proceeding. Findings of Ultimate Fact Regarding Violations Based on the foregoing, it is determined that Respondent violated section 550.2415(1)(a) by racing greyhound ATASCOCITA ACURA, which was impermissibly medicated or determined to have a prohibited substance present resulting a positive test for dimethyl sulfoxide. Based on the foregoing, it is determined that Respondent violated section 550.2415(1)(a) by racing greyhound ATASCOCITA DALT, which was impermissibly medicated or determined to have a prohibited substance present resulting in a positive test for caffeine. Based on the foregoing, it is determined that Respondent violated section 550.2415(1)(a) by racing greyhound ATASCOCITA EDGE, which was impermissibly medicated or determined to have a prohibited substance present resulting in a positive test for theobromine. Based on the foregoing, it is determined that Respondent violated section 550.2415(1)(a) by racing greyhound ATASCOCITA EDGE, which was impermissibly medicated or determined to have a prohibited substance present resulting in a positive test for theophylline. Based on the foregoing, it is determined that Respondent violated section 550.2415(1)(a) by racing greyhound ATASCOCITA DALT, which was impermissibly medicated or determined to have a prohibited substance present resulting in a positive test for theobromine. Based on the foregoing, it is determined that Respondent violated section 550.2415(1)(a) by racing greyhound RCK MOHICAN, which was impermissibly medicated or determined to have a prohibited substance present resulting in a positive test for caffeine. Based on the foregoing, it is determined that Respondent violated section 550.2415(1)(a) by racing greyhound ATASCOCITA HAPPY, which was impermissibly medicated or determined to have a prohibited substance present resulting in a positive test for caffeine. Aggravating or Mitigating Factors Petitioner presented evidence proving that Respondent was disciplined in 2011 for two violations involving the administration of class III drugs to racing greyhounds. These violations are relevant to determining the applicable penalty ranges in rule 61D-6.012. The violations charged in the administrative complaints filed on November 28 and 30, 2016, and December 28, 2016, occurred sufficiently close together in time such that Respondent was not informed of the violations in these complaints in time to enable her to take corrective measures. However, by the time the administrative complaint dated February 16, 2017, was filed, Respondent was on notice of the violations charged in the previously served administrative complaints, so she had sufficient time before the January 28, 2017, race to take appropriate corrective measures. This constitutes an aggravating factor in determining appropriate penalties. The evidence establishes that the caffeine level in RCK MOHICAN on November 26, 2016, was approximately 42 times the permissible limit for that substance established in rule 61D- 6.007(3)(a). As noted above, caffeine is a class II drug, which means that there is a high potential that its administration would affect the greyhound's performance. This constitutes an aggravating factor in determining appropriate penalties.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering, enter final orders in these proceedings as follows: For DOAH Case No. 17-4870, finding that Respondent committed two violations of section 550.2451(1)(a) and imposing a penalty consisting of a $1,500 fine and suspending Respondent's license for 75 days; For DOAH Case No. 17-4871, finding that Respondent committed three violations of section 550.2415(1)(a) and imposing a penalty consisting of a $1,750 fine and suspending Respondent's license for 60 days; For DOAH Case No. 17-4872, finding that Respondent committed one violation of section 550.2415(1)(a) and imposing a penalty consisting of a $1,200 fine and suspending Respondent's license for 72 days; and For DOAH Case No. 17-4873, finding that Respondent committed one violation of section 550.2415 and imposing a penalty consisting of a $1,200 fine and suspending Respondent's license for 72 days. DONE AND ENTERED this 27th day of December, 2017, in Tallahassee, Leon County, Florida. S Cathy M. Sellers 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 27th day of December, 2017.
The Issue Whether Respondent raced an animal with a drug in violation of section 550.2415(1)(a), Florida Statutes (2012),1/ as alleged in the Administrative Complaints, and, if so, what sanction is appropriate.
Findings Of Fact The Division is the state agency charged with regulating pari-mutuel wagering in the state of Florida, pursuant to chapter 550, Florida Statutes (2015). At all times material, Mr. Ziadie held a pari-mutuel wagering occupational license, number 701515-0121, issued by the Division. At all times material, Mr. Ziadie was subject to chapter 550 and the implementing rules in Florida Administrative Code Chapter 61D-6.2/ Under section 550.2415(1)(a), an animal may not be raced with any drug. It is a violation for any person to administer a drug to an animal which results in a positive test in samples taken from the animal after the race. Under section 550.2415(1)(c), "[t]he finding of a prohibited substance in a race-day specimen constitutes prima facie evidence that the substance was administered and was carried in the body of the animal while participating in the race." Under rule 61D-6.002(1), "[t]he trainer of record shall be responsible for and be the absolute insurer of the condition of the . . . horses he/she enters to race." As reflected in Division records kept in accordance with the 2010 Equine Detention Barn Procedures Manual ("the Manual"), which was in effect at all relevant times, Mr. Ziadie was the trainer of record of the thoroughbred horses from which samples were obtained in Ziadie I and Ziadie II. Mr. Ziadie is substantially affected by the Division's intended action. The equine detention barn is the site at each licensed racetrack in Florida where employees of the Division collect urine and blood samples from racehorses. It includes a fenced- in and secured area that generally has at least six stalls, as well as an area for walking the horses after a race. After a horse has been selected for sample collection (usually the top two or three finishers and sometimes a "special" that has been added at the request of the stewards), a Division employee tags the horse and accompanies it back to the detention barn. Along the way, a Division veterinary assistant assigned to the horse assumes custody and escorts the horse. At the barn, the horse is positively identified by means of a tattoo on the underside of its lip. The horse is walked to cool it down and sometimes bathed, and then taken into a stall for sample collection. Following their respective races, Mr. Ziadie's horses were immediately taken in this fashion to the detention barn for the taking of urine and blood samples. The Division publishes the Manual under the direction of Ms. Blackman as the chief of operations. The Manual is used at all horse racing facilities in the state of Florida and was last updated on June 25, 2010. The Manual provides that veterinary assistants, chief veterinary assistants, detention barn security guards, and detention barn supervisors "study, become completely familiar with, and put into practice" the procedures outlined in the Manual. It describes seven steps in chain-of-custody procedures, three of which are "collecting the specimen, sealing the specimen, and completing the required forms," and describes detailed procedures in this "strict sequence of events that must be followed." As the Manual makes clear, Division employees at the detention barns in the state of Florida are all required to follow the procedures outlined in the Manual "each and every time" they work with samples. They do not have discretion not to follow its requirements. Mr. Stirling credibly testified that in his capacity as executive director of the Florida Horseman's Benevolent and Protective Association, a position he has held for 20 years, he was an advocate for the horsemen. He attended all of the workshops for rules relating to medication overages as one of his primary duties. The centrifuging process, extraction of the serum, and sealing of the serum specimen as described in detail in the Manual were never discussed at a rulemaking hearing. These procedures are not a part of rule 61D-6.005, adopted in 2001. As he testified, Mr. Stirling was not even aware of these procedures until a month or two before the final hearing in these cases. The Manual has not been adopted under the procedures of section 120.54. At the time of these races, rule 61D-6.005, effective November 19, 2001,3/ governed the procedures for the taking of urine and blood samples from the horses. Subsection (3) provided in part: The specimen shall be sealed in its container, assigned an official sample number which is affixed to the specimen container, and the correspondingly numbered information portion of the sample tag shall be detached and signed by the owner, trainer, groom, or the authorized person as a witness to the taking and sealing of the specimen. Subsection 4.5 of the Manual describes the sample tag in greater detail: RL 172-03 is a self-adhesive sequentially numbered bar-coded, three part form (blood label, urine label and card) provided by the University of Florida Racing Laboratory that is used to catalog specimens by assigning them "Specimen Numbers." As specimens are collected, information regarding the animal from which the sample was collected is written on the bottom of this form. The top two portions of the form (Blood, Urine) are completed with the Track Number and Collection Date. The applicable top portions of the form are then separated and applied to the urine specimen cup and/or evergreen blood tube. The bottom portion, or Specimen Card, is completed and appropriately signed and is sent to the Tallahassee Office of Operations to be filed. The sample tag thus consists of three portions: the numbered portion designated for the blood specimen ("blood label"), the numbered portion designated for the urine specimen ("urine label"), and the numbered portion containing additional information about the animal and trainer that is to be signed by the witness ("card"). In the sampling procedures followed in these cases, the blood label was not affixed to the collection tube. The blood label, from which the card portion was "detached," was affixed to the evergreen blood tube. This was consistent with the governing rule, as well as the Manual. The evergreen tube is the specimen container for the serum. The sampling procedures followed with respect to the serum and urine samples taken in Ziadie I and Ziadie II were in compliance with the procedures set forth in the Manual. As stated in subsection 4.4 of the Manual, "[s]ealing the sample ensures the specimen does not spill during shipment to the laboratory and assures all parties that the sample has not been tampered with." The same purposes are served by sealing the serum specimen. After the blood samples were taken by the veterinarian, they were not "sealed" in the collection tubes. The fact that the collection tubes are air tight prior to and after the taking of the blood and initially contain a partial vacuum to facilitate collection, does not constitute "sealing" of the specimen in its container for purposes of the rule. As Dr. Watson testified: Q: Okay. Are these 15 milliliter tubes sealed? A: Well, they're sealed in that there's a vacuum in there and in order to draw the blood efficiently, that vacuum has to be there. If that seal is broken then it would not work. But, as far as sealing for legal purposes, they're not sealed at that time. There's a process that it has to go through in order to extract the serum. The three collection tubes are not the specimen container, but the last three digits of the number from the blood label affixed to the specimen container were written on each blood collection tube with a black "Sharpie" type marking pen to ensure control of the sample. The Manual prescribes detailed procedures for spinning the blood collected from the race horses in a centrifuge to extract the serum. After the blood was centrifuged, and the serum was poured into the evergreen tube, the serum was sealed with evidence tape, as described in the Manual, and the chief veterinary assistant put his initials over the seal. This constituted "sealing" of the specimen in its container. Subsection 4.6 of the Manual provides: Serum is poured into applicable (numbered) "evergreen" tubes. Each "evergreen" tube is immediately properly sealed with evidence tape. Rule 61D-6.005 does not make any reference to spinning the blood in the centrifuge to extract serum, the pouring of serum into an evergreen tube, the sealing of the evergreen tube with evidence tape, or the freezing of the specimen. The Manual establishes additional policies and procedures not contained in the rule. The serum must be separated from the blood because whole blood cannot be frozen without damage that would affect its usefulness in laboratory testing. Centrifuging facilitates the separation of the serum from the whole blood. The transfer of the separated serum from the glass collection tubes to the plastic evergreen tube is then done for two reasons. First, the plug that helps separate the serum can allow the blood cells to seep around and return to the serum, where they can release hemoglobin and iron, which can distort laboratory analysis. Second, using the plastic evergreen tube saves shipping weight and reduces the incidence of breakage during shipping. The centrifuged collection tubes are stored in a locked refrigerator. The opening of the centrifuged collection tubes and the pouring of the serum into correspondingly numbered evergreen specimen containers is carefully performed by Division employees with the intent to avoid contamination. The sealed evergreen specimen containers then remain in a locked freezer until they are shipped to the laboratory. The evidence was clear and convincing that the serum specimens in these consolidated cases were derived from the blood sample tubes bearing the same last three numbers as the tag which was prepared when the blood was taken. The serum specimens came from Mr. Ziadie's horses. Dr. Barker testified that the "free pour" of the serum was the point at which the specimen was most vulnerable, and that contamination or tampering was possible. He stated he would have preferred more supervision, witnessing, and documentation as to who was doing what, at what time. Dr. Cole concurred that there is always a possibility of contamination when a sample is transferred from one container to another. However, the free pour method used to transfer the serum from the collection tubes into the evergreen specimen container is one of the better approaches, as opposed to using a pipette or other method that would put something into the sample. Contamination from the free pour of the serum is unlikely. There was no evidence introduced to suggest that misidentification, tampering, or contamination of the specimens was likely or probable. The state veterinarian who took the blood sample from each horse signed PMW Form 504, a Daily Record of Sample Collection, indicating that this had been done. After centrifuging the whole blood in the collection tubes, at the end of the day the state veterinarian usually leaves the collection tubes with the chief veterinary assistant, who pours the separated serum from each collection tube into the correspondingly numbered evergreen container and seals it. Sometimes, the state veterinarian stays to observe the transfer of the serum to the evergreen specimen container. No document is signed to note the time that the state veterinarian leaves the samples at the detention barn or the time that the chief veterinary assistant opens the collection tubes and transfers the serum. Custody of the samples remains with Division personnel throughout this process. No transfer of custody takes place until the specimen containers are shipped to the laboratory. In each instance of sampling in these cases, the owner's witness signed the card portion of the sample tag (Form RL 172-03) after the taking of the urine and blood samples. In each instance of sampling in these cases, the owner's witness signed the card portion of the sample tag after the sealing of the urine specimen in its container, but before the sealing of the serum specimen in its container, the evergreen tube. In each instance of sampling in these cases, the owner's witness did not observe the extraction of the serum or the sealing of the serum specimen in its container with the evidence tape. The witnesses could have remained to watch those procedures had they requested to do so. Subsection 4.6 of the Manual states, "the owner, trainer of record or designated authorized witness may leave with the released animal or may elect to witness the conclusion of the collected blood specimen processing and sealing cycle." According to Division policy, two signs are posted in the detention barns to advise owners' witnesses that they may remain to witness the centrifuge process and sealing of the sample. Specific testimony that a sign was in place at the exact times sample collection took place in each of these races, or the exact location that it was posted, was lacking. However, there was more general testimony from Dr. Watson that signs have been posted ever since he has been employed. Dr. Watson credibly testified that, during the five years he has been working at the tracks, no owner's representative has ever stayed to watch the centrifuging of the samples or the sealing of the serum specimen container. The pouring of the collection tubes into the specimen container takes place at the end of the racing day, after all of the horses have departed from the detention barn. It would be very inconvenient for an owner's witness to remain until the serum specimens were sealed. The procedures that were followed--set forth in the Manual--which allowed the owner's witness to sign the sample tag after witnessing the taking of the blood but before the sealing of the specimen, were not in compliance with rule 61D-6.005(3), quoted above, which required the owner's representative to sign as a witness to both the taking and sealing of the specimen. Even had it been clearly shown that signs advising the owners' representatives that they were allowed to stay and witness the sealing of the specimen container were prominently displayed on every occasion on which the samples were taken, this would not bring the procedure being followed into compliance with rule 61D-6.005(3). The requirement that the authorized representative must witness not only the taking, but also the sealing of specimens, is a provision directly related to maintaining integrity in the sample collection process. Such deliberate disregard of the plain language of the rule directly affects the fairness of the entire blood sampling procedure. The urine and serum samples in these cases were properly delivered to the University of Florida racing laboratory and the integrity of the samples was intact. The laboratory conducts an initial screening of each urine sample in a process of elimination to weed out negative samples that do not contain any suspected drugs. This screening looks at a large number of samples and screens them broadly. The suspicious samples are then subjected to confirmation testing, in either serum or urine, testing a fewer number of samples and targeting for detection of specific drugs. The Association of Racing Commissioners International create Uniform Classification Guidelines for Foreign Substances. Classes range from class I drugs, which have no therapeutic value and are most likely to affect the outcome of a race, to class V drugs, which have the most therapeutic value and the least potential to affect the outcome of a race. Class III, IV, and V drugs all have some therapeutic value. Clenbuterol is a bronchodilator, a drug which may be prescribed for horses for therapeutic purposes. If a horse had blood or sand in his lungs after a race, he might be placed on clenbuterol for five to eight days, twice a day, and the medication would clean the lungs out completely. Clenbuterol also has the capacity to be a repartitioning (conversion of fat into muscle) agent. It is not as effective as an anabolic steroid, but it does have the capacity for building muscle. Rule 61D-6.008 does not permit any clenbuterol in the body of a racing animal on race day. Clenbuterol is a Class III drug under the Uniform Classification Guidelines for Foreign Substances. Phenylbutazone is a nonsteroidal anti-inflammatory drug effective in treating fever, pain, and inflammation. It was credibly described as having effects similar to aspirin. Rule 61D-6.008(2)(a)2. provided in part that, "[p]henylbutzone may be administered to a horse providing . . . the post-race serum sample of such horse contains a concentration less than 2 micrograms (mcg) of Phenylbutazone or its metabolites per milliliter (ml) of serum." Phenylbutazone is a class IV drug under the Uniform Classification Guidelines for Foreign Substances. The laboratory routinely receives only the information on the urine and blood labels with the specimens and does not know the identity of the horse or trainer. Samples tested in the laboratory are assigned an "LIMS" number internal to the laboratory and do not contain any information that would identify the horse or trainer. The technicians who actually conduct the tests are not informed of the name of the horse or trainer involved. Once the Division is advised by a laboratory report that a sample has "tested positive" for a particular substance, the Division matches the laboratory report to the sample tag, which has been kept under lock and key, to determine the identity of the horse and trainer. The stewards and trainer are then notified. After the trainer is notified of positive results, he has the opportunity to request a split sample. In this procedure, a portion of the specimen is shipped from the University of Florida laboratory to an outside laboratory for independent analysis. There is a minimum amount of a drug that can be detected scientifically with a reliable concentration range. As the scientific capability to detect a drug improves, this testing level can be lowered by a laboratory. The instrumentation can almost always detect the presence of the drug below the reliable concentration range that establishes the testing level. As Ms. Wilding testified, a "withdrawal time" is the time interval prior to sample collection at which the last administration of a drug can take place to allow the drug to be cleared from the horse's system so that no "positive" would be reported in that sample based upon the test detection level or reporting point for that particular drug. Mr. Stirling testified that based upon informal conversations with Dr. Tebbet, Dr. Cole, and Dr. Sams, former directors of the laboratory, he had disseminated information to horsemen for years that a five-day withdrawal time would be appropriate for clenbuterol. From July 1, 2010, until June 30, 2011, there were four clenbuterol positives from horse race tracks in Florida. From July 1, 2011, until June 30, 2012, there were 13 clenbuterol positives from horse race tracks in Florida. During this same fiscal year, the laboratory also found the presence of clenbuterol in 193 additional samples, but did not deem them "positives." In these samples, the laboratory detected clenbuterol in a concentration of less than 25 picograms per milliliter. Dr. Barker credibly testified that the fact that 193 findings of clenbuterol at less than 25 picograms per milliliter were not called "positives" indicated that either the laboratory or the Division had some form of confirmation level established. As Ms. Wilding testified, changes to the protocol as to the amount of a drug that must be present in a sample before that sample will be called "positive" are made through revisions to the laboratory's standard operating procedures (SOPs). Ms. Blackman testified that she had conversations with Ms. Wilding at the laboratory "sometime in, maybe, the summer of 2012" about the ability of the laboratory to calibrate their instruments to detect clenbuterol at the lowest level, based upon Ms. Blackman's understanding that clenbuterol was being abused, in that it was being prescribed not just for its bronchodilator effect, but also for its anabolic effects. SOP DCN: R1.07.04.05.04-07, entitled "Extraction of Clenbuterol from Horse Serum or Plasma and Identification by Liquid Chromatography-Tandem Mass Spectrometry," effective April 27, 2012, established the low end of the calibration curve at 10 picograms per milliliter. The amount of the lower positive control was 25 picograms per milliliter. The SOP provided: "If the mean concentration of clenbuterol in the test sample is less than the lower end of the calibration curve, it will not be reported." From July 1 until December 31, 2012, there were nine clenbuterol positives from horse race tracks in Florida. The first Florida positive called by the laboratory for a thoroughbred race horse whose post-race serum sample contained a level of clenbuterol less than 25 picograms per milliliter of serum was for the first race in Ziadie I, on July 4, 2012, which was reported as a positive with a level of 18 picograms per milliliter. Testing also confirmed in serum the presence of phenylbutazone in that first sample, in the amount of 2.3 micrograms per milliliter, an amount in excess of the 2 micrograms per milliliter which is permitted. The laboratory results were sent to the Division by letter dated August 6, 2012. The initial confirmation of the phenylbutazone overage and clenbuterol positive from the race of July 4, 2012, was originally sent to the stewards to resolve but was later taken from the stewards and turned into an administrative complaint. On August 9, 2012, a long article appeared in the Miami New Times entitled "Cheaters Prosper at Calder Park." The article described a racing industry tainted by drug violations and criticized the Division for lax regulations and poor enforcement. The article identified Mr. Ziadie by name, giving a short biography and saying there were signs of "systematic rulebreaking" over his long racing career. Ms. Blackman saw the article. She also forwarded an e-mail attaching the article to Ms. Wilding at the laboratory. Clenbuterol was confirmed in serum taken after the other four races of the Ziadie I complaint, held on August 17, August 30, September 14, and September 27, 2012. The concentration of clenbuterol in those samples ranged from 10 to 21 picograms per milliliter. The results from the laboratory were provided to the Division on September 25, October 1 (two races), and October 16, 2012. At Mr. Ziadie's request, the samples were split, and an independent laboratory confirmed the presence of clenbuterol in each sample. In late December 2012, the Division gave the laboratory authority to begin conducting confirmation testing for clenbuterol in urine rather than in serum. In the beginning of 2013, the laboratory changed to a 140 picogram per milliliter confirmation level for clenbuterol in urine. The Division did not give notification to the horsemen or veterinarians of these changes. From January 1, 2013, until June 30, 2013, there were 154 clenbuterol positives from the horse race tracks in Florida. Dr. Barker testified: So you would be able to see clenbuterol in urine for a much longer period of time. And, of course, that's also why ARCI now has a urine threshold instead of a plasma threshold because the idea was to push it out as far as they could and still be able to call it. They couldn't do that sufficiently in blood, they felt, so they converted it to a urine threshold. So if you go from a plasma threshold to a urine threshold, particularly the-–if it's a threshold that ARCI has recommended, you know, ARCI threshold is 140 picograms per ml in urine, and that's based on using the lowest dose and a 14-day withdrawal. Well, if you had been using the lowest dose and had been following a five-day withdrawal, you would come up positive. If you had been using the lowest dose and had been following a ten-day withdrawal, you're going to come up positive. And so if people, trainers and veterinarians, were not being informed of a change in how the laboratory was testing and interpreting data, and basically was working from a position that required a longer withdrawal time and the horsemen didn't know that, well, you're going to-–you should get all kinds of positives. Dr. Barker's explanation of the consequences of changing from a serum confirmation to a urine confirmation for clenbuterol is credited. His testimony also at least partially explains why there is not a clear correlation between the concentrations of clenbuterol detected in serum with the concentrations detected in urine from samples taken at the same time. The amounts of clenbuterol and the times it was administered to the horse remain unknown variables, and clenbuterol is detectable for a longer period of time in urine. Differences might also be explained by the amount of water the horse drank, or other factors. On or about February 8, 2013, following the great increase in the number of positive calls for clenbuterol, Mr. Stirling posted a notice regarding withdrawal times at the tracks and published it in the "overnights" that went to trainers. The notice stated: According to the Department [sic] of Pari Mutuel Wagering the withdrawal time for clenbuterol is the same as it was previously (5 days) at the proper dosage. If you had a recent positive for clenbuterol and used the old/new withdrawal time there should be no administrative action taken against you. At either the end of February or the beginning of March of 2013, the Division requested the laboratory to return to clenbuterol confirmation screening in serum, rather than urine. SOP DCN: R1.07.04.05.04-09, entitled "Extraction of Clenbuterol from Horse Serum or Plasma and Identification by Liquid Chromatography-Tandem Mass Spectrometry," effective March 7, 2013, established the low end of the calibration curve at 5 picograms per milliliter. The low end of the calibration curve reflects the lower limit of detection at which the SOP can detect a drug with a reliable concentration range. The amount of the lower positive control was set at 15 picograms per milliliter. The SOP provided: "If the mean concentration of clenbuterol in the test sample is less than the lower end of the calibration curve, it will not be reported." Clenbuterol was confirmed in serum in confirmation testing of 13 of the Ziadie II samples, taken after races from March 13, 2013, through October 27, 2013, ranging in concentration from 5 to 14 picograms per milliliter. These samples were also split, and an independent laboratory confirmed the presence of clenbuterol in each sample. Testing also confirmed in serum the presence of phenylbutazone in the sample taken from the race on January 19, 2014, in Ziadie II, in the amount of 2.3 micrograms per milliliter, plus or minus .3 micrograms. The Division did not give notification to the horsemen of any changes in the testing level at which the laboratory would report that a sample had tested positive for clenbuterol. Ms. Blackman testified that clenbuterol is not permitted at any level on race day, and it is the trainers' responsibility, in conjunction with their veterinarians, to decide whether to administer a particular medication at all. She testified that she did not think it was in the best interest of the horses or the Division to make announcements every time they are able to detect a new drug or an existing drug at a lower level. In contrast, she noted, when the amount of phenylbutazone permitted in a horse on race day was lowered from mg to 2 mg, this was announced to the horsemen through the public rulemaking process. An advance notice of about six months allowed trainers to work out adjustments with veterinarians so there would not be a huge number of phenylbutazone positives when the new rule became effective. Since phenylbutazone is a "threshold" drug permitted on race day at no greater than prescribed amounts, Ms. Blackman testified that it was reasonable to give horsemen notice of this change. Dr. Cole testified that she had a different view about changes to testing levels of drugs such as clenbuterol that were completely prohibited on race day when she was the director of the lab, saying she believed it was "prudent and fair" to notify the horsemen of changes in advance: Often when we're changing levels or sensitivity for medication type—drugs that have legitimate use in a horse, we would try to have a conversation with the horsemen to let them know that change was coming so that they could comply. Generally it's going to be an increase in the withdrawal time that they're going to be needed. On March 20, 2013, Mr. Stirling sent an e-mail to Ms. Blackman stating that he was beginning to get low-level positives for clenbuterol again, giving an example of picograms per milliliter. He stated he thought the testing medium had been changed back to blood to return to a five-day withdrawal time and asked how the Division planned to handle the low-level clenbuterols from December. In e-mail correspondence continuing through April and May of 2013, Mr. Stirling continued to question the Division about the withdrawal time and to urge a 25 picogram per milliliter testing level. Ms. Blackman advised that the laboratory was re-confirming in serum the clenbuterol positives that had been confirmed in urine. She noted that a 10 picogram per milliliter reporting point for testing in serum had been established prior to the change in the medium for confirmation and noted there was no "threshold" for clenbuterol in Florida. On May 24, 2013, Ms. Blackman advised Mr. Stirling that clenbuterol positives confirmed in serum at 5 picograms per milliliter or a greater concentration would be prosecuted. On or about May 29, 2013, Mr. Stirling issued a memorandum to Florida horsemen advising that the Division was continuing to call clenbuterol positives at levels detected below 25 picograms per milliliter and suggesting that they should no longer rely on a five-day withdrawal time. The memorandum suggested that a 14-day withdrawal time "should be more than safe" for avoiding a clenbuterol positive. Mr. Ziadie admitted he did not change his practice of utilizing a five-day withdrawal time in response: I was still stuck on the five days, your honor. I was stubborn. I know I did wrong. I know that there was a rumor and I know there was a brochure going around 14 days. but I was trying to do the best for my horses. I thought that it was the medication that they needed at the time when we were racing and I take blame for being stubborn and making a mistake, but I did keep it at 5 days. SOP DCN: R1.07.04.05.11-06, entitled "Extraction of Clenbuterol from Horse or Dog Urine and Identification by Liquid Chromatography-Tandem Mass Spectrometry," effective October 9, 2014, established the low end of the calibration curve at 50 picograms per milliliter and the high end of the calibration curve at 2000 picograms per milliliter. The amount set for both positive controls was 140 picograms per milliliter. The SOP provided: Report the calculated concentration of clenbuterol in the suspect sample as the average of its duplicates if its calculated value lies within the range of the calibration curve. If the calculated concentration of clenbuterol in the test sample is outside the range of the calibration curve, it will be reported as either greater than, or less than the limits of the calibration curve. Based on the serum test results, the Second Amended Complaint in Ziadie I was served on Mr. Ziadie on or about September 8, 2014. The First Amended Complaint in Ziadie II was served on Mr. Ziadie on or about March 16, 2015. Other trainers whose horses tested positive for clenbuterol did not have administrative complaints filed against them. The Division, instead, settled their cases with fines. Almost all of these trainers had few prior violations, however. There was credible testimony that the Division had offered to settle charges against one other trainer who had numerous prior violations with the imposition of fines and a short suspension, but there was no evidence that a settlement had been reached. It was also noted at hearing that this trainer's recent violations were in close proximity, which suggested that he might not have been informed of the violations in one case before the samples were taken in the next. The Division noted that this could be a mitigating factor, because a trainer would not reasonably have had an opportunity to adjust his medication levels in response to the earlier violations. Ms. Wilding testified that, in early 2015, she was asked by the Division to re-confirm the 2012 positive serum confirmations from Ziadie I using the urine samples taken immediately after those races. The urine samples had been used for initial screening in 2012, but had not been used for confirmation at that time. The urine samples had been stored in a minus 30-degree freezer since the initial screening in 2012 had determined them suspicious for clenbuterol. On March 18, 2015, Ms. Wilding sent an e-mail to her immediate subordinates, the supervisors of the laboratory's four main divisions, advising that "PMW Legal is asking us to analyze the five urine samples in the first Ziadie case for clenbuterol." Her e-mail listed the sample numbers for the five urine samples and directed that they be rescreened for clenbuterol and then tested for confirmation. The 2012 urine samples were rescreened for clenbuterol in 2015, and, as Ms. Wilding testified, the results were in "good agreement" with the screening results from 2012. This indicated that the presence of clenbuterol remained relatively stable over that period of time. Although the laboratory supervisors knew the trainer associated with the samples, as Ms. Wilding and Mr. Russell testified, samples tested in the laboratory do not contain identification of the horse or trainer and are only marked with a "LIMS" number internal to the lab. The technicians who actually performed these tests were not informed of the name of the horse or trainer involved. Clenbuterol was confirmed in the urine in the 2015 tests in each of the five samples from Ziadie I, ranging in concentration from 1.8 nanograms per milliliter to 1.3 nanograms per milliliter. The samples were also split, and an independent laboratory confirmed the presence of clenbuterol in each urine sample. There was no significant degradation of the urine samples over the three-year period. The results were scientifically sound. In early May 2015, again at the Division's request, the laboratory began confirmation testing for clenbuterol in urine samples from the Ziadie II races. These urine samples were not rescreened because, as Ms. Wilding had earlier determined from the Ziadie I urine samples, the stability of clenbuterol in urine stored in a minus 30-degree freezer for several years was "excellent." The senior staff members were again likely told about the identity of the trainer. Again, samples tested in the laboratory do not contain identification of the horse or trainer and are only marked with a "LIMS" number internal to the lab. The technicians who actually performed the confirmation testing were not informed of the name of the horse or trainer involved. The samples confirmed positive for clenbuterol at concentrations, in picograms per milliliter, of 973, 551, 390, 212, 718, 450, 236, 740, 698, 225, 435, 197, and 435, all amounts with a measurement of uncertainty at plus or minus 30 picograms. Again, these results were scientifically sound. The serum specimens were routinely collected without the owners' representatives witnessing the sealing of the specimens and were not collected pursuant to the requirements of chapter 61D-6. The systematic and regular violation of this important requirement constituted a significant procedural error that affected the fairness of the blood sampling procedure. Subsection 4.6 of the Manual is an unadopted rule. The only evidence of the presence of phenylbutazone in any of Mr. Ziadie's horses was from serum obtained pursuant to the unadopted procedures of subsection 4.6 of the Manual and in a manner contrary to the Division's own rule. The Division failed to prove that Mr. Ziadie's horses carried a prohibited level of phenylbutazone in their bodies on race day. The urine test results proved that Mr. Ziadie's horses in these consolidated cases had clenbuterol in their bodies on race day. Mr. Lawson testified that as a licensed horse owner in the United States, South Africa, and Jamaica, he has had an opportunity to observe the different ways that trainers care for their thoroughbred horses. He testified that Mr. Ziadie's stalls were always clean, the handling of the feed was always done in a very systemized and structured way, and the best feed available was used, even though it had to be imported and was much more expensive. He testified that Mr. Ziadie's horses were always well groomed, they always looked very healthy, their coats were very shiny, their feet were carefully inspected, and they were happy horses. He testified that Mr. Ziadie looked after the specific needs of each horse, rather than treating them all the same, and spent a lot of time personally inspecting them. He noted that Mr. Ziadie didn't race his horses as often as other trainers. Mr. Lawson's testimony was bolstered by the stipulated testimony of Dr. Al Smollen, a veterinarian for the tracks, and the testimony about the excellent condition of Mr. Ziadie's horses, the cleanliness of their surroundings, the quality of the feed, and the care given to the horses is credited. The Division presented clear evidence that Mr. Ziadie has had 14 prior violations of section 550.2415, Florida Statutes. The Division case number, date of offense, name of restricted drug, classification, and disposition are as follows: CASE NUMBER DATE DRUGS CLASS
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 finding Mr. Kirk M. Ziadie guilty of 18 counts of violating section 550.2415(1)(a), Florida Statutes, and Florida Administrative Code Rule 61D-6.002(1); imposing an administrative fine of $18,000; and suspending his license for six years. DONE AND ENTERED this 15th day of December, 2015, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD 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 15th day of December, 2015.
