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 There are two issues in this case: whether the Petitioner, Thomas M. Parham, is maintaining an unpermitted stationary installation that is reasonably expected to be a source of air or water pollution; and whether installations on Mr. Parham's property are discharging into groundwater, and whether he should therefore be required to obtain a groundwater monitoring permit and conduct groundwater monitoring as ordered in the Department's Final Order, DEP OGC File No. 08-0521 (the Order).
Findings Of Fact Thomas Parham purchased the property at 5401 Pickettville Road, Jacksonville, Florida (the Property), in a tax sale on November 21, 2007. His intention was to use it to park and store trucks and heavy equipment. At the time of purchase, there were no signs posted on the Property indicating that it was hazardous or toxic or otherwise compromised environmentally. At the time, there was no statute or rule requiring the Property to be posted to give the public notice of any of those conditions. Parham drove past the Property before buying it, but it was fenced, and the gates were locked, and he was unable to get in to inspect it. From the fence, he saw no indication that the Property was hazardous or toxic or otherwise compromised environmentally. However, Parham knew that there was fill material on the Property. He states that he did not know the Property was toxic or hazardous, but he did no due diligence to determine what kind of fill was on the Property. Parham has bought and sold property in tax sales for a living for the past 11 years. He owns 115 different properties, and has been involved in 795 property transactions. Once, he accidentally bought a contaminated property, which the City of Jacksonville bought back from him after the contamination was discovered. Based on his experience, Parham knew or should have known to conduct due diligence on the Property before buying it. After purchasing the Property, Parham saw that part of it had a significant amount of a black material. He testified that he believed it was charcoal or bituminous coal, which he called "black beauty." Instead of determining what it was, Parham decided to cover it with dirt. He had 124 truckloads of fill delivered to the Property and covered all of the supposed "black beauty." Someone saw the activity on the Property and contacted the Department of Environmental Protection (DEP). DEP inspected and entered a Final Order, DEP OGC File No. 08-0521 (the Order) to require Parham to install monitoring wells and implement a monitoring program to determine whether the Property was causing pollution and contamination offsite. Parham challenged the Order, which resulted in this proceeding. Actually, the black material on the Property was not charcoal or bituminous coal. It was sandblasting grit material used by Jacksonville Shipyards, Inc. (Jacksonville Shipyards), in its shipyard operations to sandblast old paint coatings and rust from ships before re-painting. It would be expected that the used grit would be contaminated with metals and volatile organic compounds (VOCs). The used grit was trucked to and deposited on the Property when it was owned by Jacksonville Shipyards in the 1970's and early 1980's. Prior to Jacksonville Shipyards' purchase of the Property in 1972, it was used as a sand mine. In the process, two large pits, each 20 to 25 feet deep, were excavated on the Property. Later, waste was dumped into the pits, including concrete, asphalt, metal pipes, wire, and wooden demolition material. When Jacksonville Shipyards purchased the Property in 1972, sandblasting grit was added to the waste placed into the pits. Initially, these activities were not regulated, and the pits were not lined before being used for waste disposal. By July 1980, leachate generated when waste material (including the sandblasting grit, which was being delivered to the Property daily) came in contact with water was running off the Property towards Six Mile Creek, which flows east to where it is joined by Little Six Mile Creek, from which the combined flow towards the east becomes the headwater of the tidal Ribault River. In addition, leachate was entering the groundwater on the Property, which also flowed generally to the north towards Six Mile Creek. When DEP's predecessor, the Department of Environmental Regulation (DER) began to regulate land fills, it required Jacksonville Shipyards to submit a groundwater monitoring plan, which DER approved. Monitoring wells were installed, and the groundwater on the Property was sampled once in 1984 and showed groundwater contamination. DER groundwater standards and criteria for arsenic, barium, chromium, lead, chlorides, copper, iron, manganese, total dissolved solids (TDS), and zinc were exceeded. DER attempted to negotiate a consent order with Jacksonville Shipyards to address the contamination, but those efforts failed, and then Jacksonville Shipyards and related business entities went into bankruptcy proceedings. After the bankruptcy proceeding was initiated, Jacksonville Shipyards conducted no further groundwater monitoring at the Property. Neither DER nor DEP issued a solid waste permit or a groundwater monitoring permit for the Property. No waste has been removed the Property, and no liner has been installed. Leachate has continued to run off the Property and infiltrate the groundwater on the Property and flowed towards Six Mile Creek. After bankruptcy proceedings were initiated, representatives of DER and DEP checked from time to time to see if overdue property taxes had been paid, reasoning that payment of the taxes would be an indication that the bankruptcy proceedings had progressed to the point that a financially viable owner of the Property could be required to implement an appropriate monitoring program for the Property. In fact, unbeknownst to DEP, title to the Property was conveyed to Picketsville Realty Holdings, LLC, in 1998. In 1998 DEP contracted with a consultant to conduct sampling at the Property to identify the source of the groundwater contamination detected in the onsite monitoring wells in 1984. Groundwater, soil, and surface water samples were collected and analyzed, as were reports on assessments conducted at the Pickettville Road Landfill, a federal Superfund site located across Pickettville Road from the Property. The consultant reported in 1999 that lead in groundwater samples exceeded the maximum contaminant level (MCL) in shallow well 11 and in deep well 2. In shallow well 9, N-nitrosodiphenylamine also exceeded the MCL. Lead was detected in all twelve soil samples collected in areas where sandblasting grit was found on the surface although none of the soil samples exceeded DEP's residential direct exposure Soil Cleanup Target Level (SCTL) of 400 mg/kg. The report concluded that the Property was the source of most if not all of the contamination detected in the monitoring wells on the Property. The Pickettville Road Superfund site was not considered to be contributing to the groundwater contamination on the Property because groundwater data indicated that the Superfund site is not up-gradient of the Property. Groundwater flow from the Property was found to be generally westerly towards Six Mile Creek. In approximately 2003, the federal Environmental Protection Agency (EPA) contracted with a consultant to perform an Expanded Site Inspection (ESI) on the Property to determine whether it should be placed on the federal National Priorities List (NPL) of sites at which a release, or potential release, of hazardous substances poses a serious enough risk to the public health or the environment to warrant further investigation and possible remediation under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) of 1980 and the Superfund Amendments and Reauthorization Act of 1986. In this assessment, surface and subsurface soils and groundwater were collected from the Property, sampled, and analyzed. In addition, surface water and sediment samples from Six Mile Creek and from the Ribault River were collected, sampled, and analyzed. The federal ESI report was issued in 2004. It found arsenic, copper, benzo(a)pyrene equivalents in the surface soil samples that exceeded the default levels of concern for direct exposure, as provided in Florida Administrative Code Rule Chapter 62-777. It also found arsenic, copper, iron, lead, polychlorinated biphenyls (PCBs), and benzo(a)pyrene equivalents in the subsurface soil samples that exceeded the default levels of concern for direct exposure, as provided in Rule Chapter 62- 777. It also found chromium, iron, and lead in one groundwater sample at concentrations exceeding DEP's groundwater standards. Aluminum, arsenic, barium, chromium, copper, nickel, vanadium, acenaphthene, fluorine, and phenanthrene levels in various groundwater samples were elevated but did not exceed DEP's groundwater standards. It also found that surface water samples from Six Mile Creek contained barium, copper, manganese, and vanadium at elevated concentrations. Sediment samples from Six Mile Creek and the Ribault River contained numerous metals, bis(2-ethylhexyl)phthalate, several polyaromatic hydrocarbons (PAHs), and PCB-1260 at concentrations exceeding EPA Region 4 guidance values. It was concluded that from the elevated concentrations in the surface water samples that contamination of the surface water pathways continues to occur from inorganic contaminants from the Property. The number of impacted groundwater monitoring wells decreased from 1984 to 2004. However, arsenic concentrations increased in shallow well 9, and barium concentrations increased in shallow well 8, during that time. Also, acenapthene, which is a semi-volatile compound associated with PAHs, was reported in two wells in the 2004 ESI report but no detection was reported in the 1985 report. The 1985, 1999, and 2004 reports indicate that the waste-filled pits on the Property are discharging to groundwater. This is not surprising since there is no liner beneath the waste that has been placed in the pits. Rain and runoff on the Property would percolate through the waste and leaches contaminants out of the waste. The leachate enters the groundwater on the Property. Parham contends that contamination found on the Property is from the 53-acre Pickettville Landfill, which was operated by the City of Jacksonville. He contends that a large number of lead batteries were placed in the Pickettville Landfill from extensive lead battery disposal. The evidence proved that the Pickettville Landfill is a Superfund site but did not prove composition or amount of the waste placed in the Pickettville Landfill over the years. Even if the Pickettville Landfill was used extensively for lead battery disposal over the years, the evidence was that little or none of the contamination on the Property is attributable to the Pickettville Landfill. Besides groundwater flow from the Pickettville Landfill likely being away from the Property, lead contamination was found in the surface and subsurface soils of the Property, making it very unlikely that the contamination on the Property came from the Pickettville Landfill. Parham also questions the estimate in the three contamination reports on the Property that 200,000 cubic yards of sandblasting grit were dumped on the property. He estimated that would amount to 13,000 truckloads, which would not fit on the 4-acre Property. But a witness for DEP estimated that two- acres of 20-25 foot deep pits would hold that quantity of sandblasting grit. Even if the actual quantity of sandblasting grit dumped on the Property was less, the evidence was that it was the likely source of the metal contamination found in the soils and groundwater on and under the Property. Similarly, Parham suggests that waste oil and other waste in the Pickettville Landfill could be the source of PAH or PCB contamination on the Property. Besides groundwater flow from the Pickettville Landfill likely being away from the Property, those contaminants move very slowly and do not move large distances, making it very unlikely that the contamination on the Property came from the Pickettville Landfill. Even if some did, the Pickettville Landfill would not account for much of the contamination on the Property. Parham contends that, even if the Property is contaminated, his placement of 124 truckloads of dirt on the Property will prevent any further groundwater contamination. But dirt is not impervious and will not prevent rain and runoff from percolating through the waste on the Property and leaching contamination into the groundwater on the Property. Eventually, this groundwater leaves the Property and enters Six Mile Creek.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order requiring Thomas Parham to: Submit a complete application for monitoring plan approval on Form 62-520.900(1) to the Department of Environmental Protection, Northeast District, 7825 Baymeadows Way, Suite B200, Jacksonville, Florida 32256-7590 within 90 days of entry of the Final Order; Implement the approved monitoring program within 90 days after Department approval; and Install monitoring wells in accordance with the approved monitoring program and Rule 62-520.600(6). DONE AND ENTERED this 9th day of December, 2008, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON 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 9th day of December, 2008.
The Issue The issue for determination is whether Respondent failed to maintain the good moral character requisite to continued certification as a Correctional Probation Officer in violation of Section 943.13(7), Florida Statutes.
Findings Of Fact Respondent is James C. Norman, holder of Correctional Probation Certificate 152252. Respondent was employed in the capacity of correctional officer at the Union Correctional Institute. Bruce M. Fitzgerald, personnel manager at Union Correctional Institute, supervises drug screening of correctional officers at the Institute. Fitzgerald set up a drug screen to be administered to Respondent on October 16, 1995. Respondent came to Fitzgerald’s office on that date where Fitzgerald explained the process to Respondent, provided Respondent with a chain of custody form bearing specimen identification number 09A664423, and obtained Respondent’s signature on a Employee Drug Testing Notice. Respondent was instructed to go to Bradford Hospital in Starke, Florida for the collection of his urine sample and submission of that urine sample for the drug screening process. Pamela Langham, a licensed practical nurse for the past 20 years, was working on October 16, 1995, in the Acute Care Office at Bradford Hospital where obtaining specimens for drug screening was a part of her duties. On October 16, 1995, Langham received from Respondent the chain of custody form bearing specimen identification number 09A664423. Langham then followed standard protocol in obtaining Respondent’s urine sample by having Respondent empty his pockets, turn the pockets inside out, take off any loose fitting garments, wash his hands and clean his fingernails, and remove his footwear. Langham then had Respondent go into the restroom and obtain his urine specimen in a container. Respondent returned from the restroom with the container where Langham then gave Respondent the lid for the container. The specimen container was then sealed in Respondent’s presence. Langham had Respondent sign the specimen container. The container was then sealed in a plastic bag upon which Respondent placed his initials. Respondent’s specimen container was then refrigerated for later pick up by a courier and transportation to the laboratory in Tampa, Florida, for analysis. Langham completed a portion of the chain of custody form number 09A664423 which was sent along with the specimen to the laboratory. Michael Dean Miller, an expert in the field of forensic chemistry, is the toxicology manager and records custodian at the laboratory where Respondent’s specimen was received. The laboratory is certified by the State of Florida and nationally accredited by the College of American Pathologists. At the final hearing, Miller presented the documents prepared in the reception and testing of specimen number 09A664423. Respondent’s specimen was received in a sealed package by Enoris Moore at the laboratory on October 16, 1995. The specimen seal was intact and bore no indication that the specimen had been contaminated in any way. The specimen was analyzed and handled in accordance with the requirements of the laboratory and the State of Florida. Respondent’s specimen was tested in accordance with standard and accepted procedures in the industry. The specimen was examined by Mark Bartalini. The specimen tested positive for the presence of cocaine metabolite. Compared to a minimum cut off for testing for drug presence in urine of 150 nanograms, Respondent’s urine sample contained 11,649 nanograms which is considered a high level. This result indicated the actual presence of cocaine metabolite in Respondent’s system. Respondent denied usage of any other compound which may have affected the level of cocaine metabolite found to exist in his urine sample. His additional denial of cocaine consumption prior to the collection of his urine sample is not credited.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered finding Respondent guilty of failure to maintain good moral character as required by Section 943.13(7), Florida Statutes, and revoking his certification. DONE AND ENTERED this 7th day of May, 1997, in Tallahassee, Leon County, Florida. DON W.DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-3060 (904) 488-9675 SUNCOM 488-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 7th day of May, 1997. COPIES FURNISHED: Paul D. Johnston, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, FL 32302-1489 James C. Norman Post Office Box 651 Raiford, FL 32083 Michael Ramage, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, FL 32302 A. Leon Lowry, II, Director Division of Criminal Justice Standards and Training Post Office Box 1489 Tallahassee, FL 32302
Findings Of Fact 1-8. Adopted in Findings of Fact 1-8, respectively. 9-24. Adopted in Findings of Fact 8-23, respectively. COPIES FURNISHED: Joseph S. White, Esquire Florida Department of Law Enforcement P. O. Box 1489 Tallahassee, FL 32302 Arthur W. Quicksall, Pro Se 2123 Raiford Road Starke, FL 32091 Jeffery Long, Director Criminal Justice Standards Training Commission Post Office Box 1489 Tallahassee, FL 32302 Daryl McLaughlin Executive Director Post Office Box 1489 Tallahassee, FL 32302
Recommendation Based upon the foregoing Findings of Fact, Conclusions of Law, evidence of record, the candor and demeanor of the witnesses and the seriousness of the offense as it relates to the public trust placed in a correctional officer who guards those incarcerated by society, it is, therefore, RECOMMENDED that the Petitioner, Criminal Justice Standards and Training Commission enter a Final Order revoking Respondent, Arthur W. Quicksall's correctional officer certification. Respectfully submitted and entered this 14th day of March, 1989, in Tallahassee, Florida. WILLIAM R. CAVE 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 14th day of March, 1989. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 88-4000 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the Petitioner in this case.
Findings Of Fact Petitioner qualified for and took the Florida examination for licensure as an optician during the period July 23-25, 1982. He is a licensed optometrist in Louisiana and is currently serving as an optometrist in the United States Air Force. At this examination Petitioner passed all of the examination parts except for the section on Pharmacology in which he received an amended score of A score of 70 is passing. Petitioner contests five of the questions for which his answer sheet was found to be incorrect. These are questions Nos. 6, 13, 16, 24, and 26. During his testimony petitioner conceded his answers to Questions 6, 13, 24, and 26 were incorrect and were therefore correctly so graded on the examination. His sole case rests upon Question 16 and the correct answer thereto. Question 16 provides, with a choice of four answers: Topical hypersomatic solutions (hypertonic saline) are useful in: lubrication. corneal dehydration. C antibiosis. D reducing intraocular pressure. The correct answer is "B", and Respondent selected "D." During his cross-examination Petitioner acknowledged that "D" is an incorrect answer to Question 16. Petitioner testified he thought he had selected answer "C." Expert testimony was submitted that Question 16 is not artfully drafted because of the use of the word "useful." Had the words "in causing" or some other identifying verb been added, the meaning of the question would have been clearer. Since salt has the propensity of absorbing moisture, a saline solution is useful in removing excess fluid from the eye, i.e. corneal dehydration. Eighty-four percent of those who took this examination selected the correct answer to Question 16. Only six percent selected answer "D," the solution selected by Petitioner. One hundred three persons took this examination and 88 passed. When Petitioner's examination was initially graded he scored 64. Following his objections the questions were reviewed two times, with a final grade of 69 being awarded to Petitioner on the Pharmacology portion of the examination. The only answer to the four choices that comes close to describing the propensities of topical hypertonic solution is corneal dehydration. Examination questions are prepared by Respondent's staff and submitted to reviewers for comment prior to the examination being given. Subsequent to the examination, if questions concerning the accuracy of the questions and/or answers arise the examination is again reviewed and if either question or answer is found inappropriate the examinee is not marked off for such a wrong answer.
The Issue The issues to be determined are whether Respondent committed the violation alleged in the Administrative Complaint and if so, what penalty should be imposed?
Findings Of Fact Respondent is a licensed registered nurse in the State of Florida, holding license number RN 2802012. In late 2004, Respondent was employed as a nurse by Florida Hospital Deland. At that time, Respondent was experiencing a problem with alcohol use that resulted in complaints of alcohol on her breath when she reported to work and possible intoxication on the job. As a result, she was referred to the Employee Assistance Program (EAP) at the hospital, and suspended from work for a period of three days. The EAP Program referred her to the Intervention Project for Nurses (IPN). IPN is an alternative to discipline program established by legislation in 1983. It is a program authorized pursuant to Section 456.076, Florida Statutes. IPN works through a contract with the Department of Health, Board of Nursing and monitors nurses with substance abuse, dependence, psychiatric illnesses, physical illnesses, and sexual misconduct issues and attempts to assure that licensees with the above-referenced problems are receiving adequate treatment and are safe to practice. On December 8, 2004, Respondent was evaluated by Nancy Ackerman of the Orlando Regional Chemical Dependency Program. Respondent was diagnosed with alcohol dependence, rule out depression, chemical dependency. Based upon this evaluation and diagnosis, the IPN Treatment Team recommended that Respondent receive intensive outpatient treatment, no less than 3 days per week, and contract with IPN for monitoring. The length of a contract with IPN depends on the diagnosis a participant receives. If a participant is diagnosed with alcohol abuse, the contract is generally for two years, with review for completion after one year of compliant monitoring. A diagnosis of alcohol dependence, as with Respondent, requires a five-year contract. The difference between the two contracts is based upon the difference in criteria for the two diagnoses. Consistent with the criteria in the Diagnostic and Statistical Manual IV (DSM-IV), dependence has more factors to consider in terms of consequences for alcohol use. A longer contract for persons with a dependence diagnosis is geared toward reducing the chance of relapse by providing for a longer monitoring period. On or about January 28, 2005, Respondent voluntarily entered into a monitoring contract with IPN. As part of her contract, she was required to complete intensive outpatient treatment, attend weekly nurse support group meetings, attend AA/NA meetings, and participate in random drug testing. At the time Respondent signed her contract with IPN, she was provided with a copy of the Participant Manual, which outlines IPN's policies and requirements. IPN uses urine drug screens to determine whether a participant is using mood-altering drugs or alcohol. A urine sample is considered to be too dilute for testing if the creatinine and specific gravity levels are low. When a sample is too dilute for testing, there is a concern that the sample can be masking the use of a mood-altering substance. For the period from February 2, 2005, to March 31, 2008, Respondent provided 44 urine samples for random drug screening. The majority of her urine samples registered low creatinine levels but were sufficient for testing purposes. Of those 44 samples, however, eight were too dilute for testing. Those urine screens were submitted on the following dates: March 28, 2007; June 25, 2007; September 25, 2007; October 5, 2007; October 23, 2007; December 27, 2007; January 14, 2008; and February 5, 2008. When a participant has a urine specimen that is too dilute for testing, IPN's policy is to contact the participant to submit to an additional test. If two specimens in a row are dilute, IPN will send a warning letter to the participant, counseling them about the need to have the urine samples provided first thing in the morning and advising the participant to decrease their water intake before providing the sample. This letter also advises the participant that there may be a physical condition causing the dilute specimens that should be evaluated. If there is a second incident where two consecutive drug specimens are too dilute for testing, the participant would receive a second letter advising them that the dilute urine samples cannot be treated as a negative drug screen, and advising the participant to schedule an appointment with his or her medical provider to rule out a physical cause for the dilute specimens. On October 5, 2007, Respondent submitted a urine sample that was too dilute for testing. It was her second consecutive dilute sample. Consistent with IPN policy, on October 9, 2007, Lorraine Busch, Respondent's Case Manager, sent her a letter advising her that she had submitted two consecutive dilute samples. The letter advised, Dilute urine drug screens may indicate a physical condition that you should have evaluated. For urine drug screen purposes, IPN recommends that you attempt to give the most concentrated specimen possible in order to avoid questions about the accuracy of your urine drug screen. You may need a physical examination to determine if there is a physiological basis for your urine to be dilute. If you are someone who ingests a lot of fluids, you may need to cut down on your intake of liquids several hours prior to your urine drug screen. You may also want to try to submit an early morning urine specimen, which tends to be more concentrated. There is no clear indication how Respondent responded to this letter. However, on February 5, 2008, and February 13, 2008, Respondent again had consecutive urine specimens that were considered dilute. On February 26, 2008, Ms. Busch wrote to Respondent, advising her that the clinical team had discussed her recurrent dilute urine specimens and directed her to schedule an appointment with her primary care provider to discuss the issue. She also provided a letter to present to the Respondent's primary care provider, which requested a comprehensive physical exam to determine if there was a physical condition causing the recurrent dilute screens. The letter requested that results of the physical exam be sent to the IPN office, along with the primary care provider's impression regarding any physical condition that may produce the results. Respondent made an appointment to see her primary care provider, Dr. Patel. A urinalysis was performed and the results forwarded to IPN which indicated normal levels. However, Respondent took issue with IPN's directions and Dr. Patel's suggested course of action, and on March 28, 2008, wrote to her Case Manager, stating in pertinent part: I feel the need to communicate to IPN of how insane I believe the request for a humane being to be subjected to the medical system for tests no one knows nothing about. To imply someone might have a physical problem is a psyhic hit. How many times we have seen Drs. think they know something and so surg and nothing there and they die. With more people in holistic health & science, we know if you tell someone they are sick they become sick. The mind, body conscience is an amazing study. I am sending you information on the water I drink. I eat a healthy diet. Excercize. I feel great. I went to my primary Dr. and got an urinalysis. After decreasing my water intake x 1 week. My specific gravity remains <. He doesn't know why. The next thing he would order another urinalsis with complete dehydration x 24 hours. Now I am asking IPN in their group conscience if this is something they want to be a part of to another human being. It is against my spritual beliefs to be submitted to the medical system and unneeded tests. I am very grateful to IPN I was very lost & didn't know what to do. You showed me the way. The knowledge, wisdom & higher consciencness that is achievable is amazing. Thanks to yall, I am able to share it. Thanks for letting me share. (Spelling and grammar as in original.) On April 22, 2008, Ms. Busch responded to Respondent's letter, reminding her that the urine drug screen is an important monitoring tool and a part of the contract Respondent signed. Ms. Busch instructed Respondent to have Dr. Patel send documentation to IPN indicating whether or not he feels there is a diagnosis to support her dilute urine drug screens. Ms Cunningham sent another letter dated April 15, 2008, and received by IPN on April 22, 2009, stating: I am requesting an early end to my contract. My enrollment as student healer, medium, & minister will be very involved with classes and study. This is my chosen path now. I prefer to keep an untarnished nursing license, however its in Gods hands now. I thank you for putting me towards my path. Generally, a participant in IPN is allowed to terminate his or her contract early for good cause. A participant is considered to have good cause for early termination when he or she is deployed for active duty in the armed forces. Compassionate release is also allowed when a nurse is no longer physically or mentally able to practice his or her profession and will not be practicing as a nurse ever again. Personal feelings toward the practice of traditional medicine, the desire to consume large quantities of oxygenated water, making healthy lifestyle changes, a reluctance to submit to physical examinations or taking classes toward spiritual pursuits are not considered good cause for early termination of the IPN contract. The Participant Manual which Respondent received specifically addresses failure to progress and dismissal from the IPN program. The Manual provides in pertinent part: Failure to progress is defined as IPN Advocacy Contract noncompliance that results in dismissal from IPN and subsequent report to the DOH/BON. The primary elements indicating failure to progress are: Failure to comply with terms of your IPN Advocacy Contract and the requirements of IPN participation. Failure to obtain IPN facilitated evaluation(s) and/or comply with treatment as recommended by evaluator(s) and required for IPN participation. Unacceptable or limited demonstration of progress as determined by the IPN clinical team and treatment providers. The statutes and rules that govern IPN mandate that IPN participants must demonstrate progress while being monitored by IPN. By law, any IPN participant is to be reported to DOH/FDON if failure to progress occurs. * * * DISMISSAL Specific circumstances which are considered grounds for dismissal of an IPN participant include: Non-compliance with the IPN Advocacy Contract. Failure to progress. Attempting to work or working in nursing without IPN approval. Relocation outside of the State of Florida without IPN approval. Request for dismissal by the IPN participant. At the time of dismissal, IPN will forward a written report to the DOH/FBON with information regarding any alleged violations of the Nurse Practice Act, reasons for dismissal, and any safety concerns the dismissed nurse may present. . . . Consistent with IPN policy and the express terms of the Participation Manual, on April 22, 2008, Respondent was advised by letter that her request for early termination of her contract had been denied, and that she needed to complete her contract, which would end January 20, 2010. She was reminded that "[s]ince IPN is a voluntary program, if you wish to discontinue participation, you may do so. However, as you know, your file will be sent to the Department of Health for whatever action they deem appropriate." On April 24, 2009, Respondent again wrote to her Case Manager, stating, I have decided to discontinue my participation in IPN after much prayer and meditation. I live to share experience strength & hope, activly in AA and to everyone. Its wonderful to live your spitual Truths. I will remain forever grateful to IPN for showing me how to get help. I had so much fear then, today its faith experience strength & hope. (Spelling and grammar as in original.) Thanks again, Nancy Cunningham As a result, on April 29, 2009, Ms. Busch sent Respondent a letter notifying her that she had been dismissed from the IPN effective immediately for failure to comply with the conditions of her contract. She was also notified that her file would be forwarded to the Department of Health.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered finding that Respondent has violated Section 456.072(1)(hh), Florida Statutes; imposing a $250 fine; and suspending Respondent's license until such time as she undergoes an IPN evaluation and complies with any and all recommendations IPN may make, including resumption of her IPN contract, consistent with Florida Administrative Code Rule 64B9- 8.006(1)(d). DONE AND ENTERED this 9th day of June, 2009, 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 9th day of June, 2009.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, I hereby make the following relevant factual findings. On February 23, 1983, the horse "Rock Steady" owned by Petitioner, Russell Michael, Jr., and trained by Ronnie Warren, ran in the seventh race at Gulf Stream Park. The horse finished first. Subsequent to the running of the aforementioned race, and in accordance with standard procedure, "Rock Steady" was led over to the state detention barn for the taking of a urine specimen. The specimen was placed in a sealed container and transported to the Division's laboratory with other specimens. Upon reaching the Division's laboratory, the specimen was logged in, assigned a number and subjected to various preliminary tests. Based on those preliminary tests, further tests were made and on March 3, 1983, the Division's laboratory reported that the specimen taken from "Rock Steady" contained at least 182 micrograms of phenylbutazone and/or its derivatives per milliliter of urine. (Respondent's composite Exhibit 1) "Rock Steady" was administered phenylbutazone in oral paste form at some time prior to the seventh race on February 23, 1983. (Post-hearing stipulation of the parties entered pursuant to a joint telecon on July 25, 1984) On April 28, 1983, Dr. Wayne C. Duer, 3/ Chief of the Division's Bureau of Laboratory Services, sent a split sample from the urine specimen taken from "Rock Steady" to Dr. Thomas Tobin in accordance with instructions of Respondent's counsel. (Petitioner's Exhibit 8) On or about that same date, Dr. Duer sent another split sample from "Rock Steady" to Dr. George A. Maylin, Director of the New York State Racing and Wagering Board Drug Testing and Research Program. Dr. Tobin reported an average amount in the sample of 125.1 micrograms of phenylbutazone per milliliter of urine. Dr. Maylin reported a sum total of 154.4 micrograms of phenylbutazone per milliliter of urine. (Petitioner's Exhibit 10) The methods employed by the Division laboratory, and which were utilized by Chief Duer, liquid chromatography, thin laver chromatography and ultraviolet spectrophotometry, are methods recognized as the "state of the art" for quantitating phenylbutazone in urine. Based on analysis of the specimen here in question on March 1 by Dr. Duer, an average amount of 182 micrograms of phenylbutazone per milliliter of urine was indicated. In reporting his results, Dr. Duer reported his findings by factoring in the various results and averaging to report the concentration of phenylbutazone in "Rock Steady's" urine specimen. All of the Division's analyses were conducted under Dr. Duer's direction and supervision. Dr. Duer has noted a variance of approximately 3 - 4 percent when analyzing any given sample. Samples can vary based on the exposure to air for long periods of time; samples left unsealed for long periods of time; samples analyzed over various time periods; the amount of alkaline in a urine sample and the physiology of an animal - all of which may fluctuate the phenylbutazone levels in the blood plasma of a given animal. However, as noted, a specimen analyzed soon after a race is apt to be more reliable than subsequent analyses. THE PETITIONER'S DEFENSE Petitioner takes the position that it should not be required to return the purse money because the sample analyzed is different from the sample taken from the horse owned by Petitioner, "Rock Steady"; that the testing procedures utilized by the Respondent are unreliable and the analyses show widely varying concentrations of the drug phenylbutazone and based on the varying calculations, there is no competent and substantial evidence upon which a finding or a requirement can be made herein requiring Petitioner to return the purse money for using the drug phenylbutazone. Respecting Petitioner's claim that the sample analyzed was not the sample taken from the Petitioner's horse "Rock Steady" or that somehow the samples were mishandled or otherwise confused, the evidence herein reveals that Dr. Duer analyzed the urine sample taken from the horse "Rock Steady" and it remained under his custody and control until he personally apportioned the sample such that it could be analyzed by independent laboratories at Cornell University in New York and at the University of Kentucky in Lexington, Kentucky. The analytical methods employed by the Respondent, under the direction of Dr. Duer, appear reliable and are generally recognized as the state of the art in analytical procedures for measuring the drug phenylbutazone. Based on the methods utilized and the fact that the urine sample was analyzed within a short period after "Rock Steady" ran in the seventh race on February 23, 1983, I find that the testing procedures and the results of the analysis were reliable. Finally, as to Petitioner's claim that the methods employed by Respondent lend to varying results, all of the experts herein related that the calculations may vary from one laboratory to the next in a range of approximately 3 - 4 percent. Given that degree of variance as the range within which a given sample may vary, that degree of variance does not alter the conclusion herein by Respondent that the Petitioner's horse competed with an excessive amount of a permitted drug in its system in violation of Rule 7E- 1.0612, Florida Administrative Code. It is so found.
