The Issue Whether Respondent violated Sections 550.235(1), 550.235(2), and 550.25415(8), Florida Statutes, and if so, what penalty should be imposed.
Findings Of Fact Respondent, Dr. Michael J. Carinda (Dr. Carinda), is a veterinarian licensed in the State of Florida. He holds pari- mutuel wagering occupational license number 0906873 1081 97, first issued by Petitioner, Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering (Division), in 1989. Petitioner is the agency responsible for the regulation of the horse racing industry in Florida. At all times pertinent to this proceeding, Dr. Carinda was an employee of Plante & Associates and performed his duties under the direction of Dr. Paul R. Plante, a veterinarian. At all times pertinent to this proceeding, Dr. Carinda worked as a veterinarian at the Pompano Park Harness Track (Pompano Track) in Pompano Beach, Florida, as an employee of Plante & Associates. James Gabriel is and has been a detective with the Fort Lauderdale Police Department for 17 years. During 1993, Detective Gabriel worked undercover at the Pompano Track in an investigation of race fixing allegations at the Pompano Track. While undercover, Detective Gabriel posed as a convicted felon who was the owner in fact of the horse named Yankeeroughneck. A convicted felon is not allowed to register a horse in his name; therefore, Yankeeroughneck was registered under the name of Herman Berger, who was licensed by Petitioner. Mr. Berger, one of the targets of the undercover investigation, did not know that Gabriel was an undercover detective. Gabriel's undercover investigation lasted approximately one year and was electronically monitored so that conversations in which Gabriel was a part were taped recorded without the knowledge of the other participants in the conversations. At all times relevant to this proceeding, Yankeeroughneck was a standard bred horse, racing at the Pompano Track. At all times relevant to this proceeding, Dr. Plante held an occupational license issued by Petitioner and provided veterinary care to horses racing at the Pompano Track. On the morning of May 24, 1993, Detective Gabriel engaged in the following conversation with Dr. Plante and Herman Berger. Plante: If the horse the ah, had he been milkshaked before did he race well when he was milkshaked? Not every horse races well when they get bagged. (Unintelligible) Berger: He came, he raced but not the way he supposed to. Plante: I'll speak with Charlie tomorrow morning. Well, the only thing to do is to try it one start. Berger: Yes. Plante: Not that expensive to do. Berger: Exactly. Plante: If the horse improves. Berger: Alright. Gabriel: How long does it take before we do something like that for (Unintelligible.) Plante: Two and a half hours before the race. * * * Plante: Ok, the same thing that we used to, when used to pass the tube, you know, but now we can't pass the tube. What we're doing is giving it orally. Mix the stuff up put it in their dose syringes. Put it on the back of their tongue a hundred and eighty c.c. and (Unintelligible) even in the states where they have the black box, it won't test positive, pass the stomach tube and dump that whole big load in him show on the box. Dr. Plante, Herman Berger, and Detective Gabriel agreed to milkshake Yankeeroughneck before the horse's next race for the purpose of enhancing the horse's performance. On the morning of May 27, 1993, Dr. Plante advised Dr. Carinda that Dr. Carinda was to deliver an ionic boost to Yankeeroughneck's groom that afternoon. The ionic boost, which is also called a milkshake, consisted of approximately eight ounces of baking soda, and two to three ounces of confectioner's sugar mixed with water to the consistency of paste. Dr. Plante told Dr. Carinda that he had given instructions to the groom on May 24, 1993, on how to administer the milkshake. Yankeeroughneck was scheduled to and did race at the Pompano Track on May 27, 1993. Dr. Carinda testified that approximately two and one half hours before Yankeeroughneck was scheduled to race on May 27, 1993, he delivered a milkshake to Yankeeroughneck's groom for the purpose of having the groom administer the milkshake to Yankeeroughneck on the same day. The mixture was delivered in a ziplock bag. Detective Gabriel, Herman Berger, and Michael Metcalf, the groom, were present at the racetrack at the time Dr. Carinda delivered the milkshake. Dr. Carinda told them to administer the milkshake as close as possible to the time that horse was placed in confinement. Once a horse is placed in confinement prior to a race, nothing can be administered to the horse. When Dr. Carinda arrived at the track, Detective Gabriel, Herman Berger, and Michael Metcalf had a dose syringe ready for the milkshake. Dr. Carinda testified that he did not consider the mixture of baking soda, sugar, and water to be a drug because it was not administered intravenously. He also testified that the purpose of administering the milkshake was to alleviate the pain and fatigue associated with a horse "tying up." Tying up refers to the pain and injury caused by tearing muscles due to exertion. By relieving the pain that would be caused by tying up, the milkshake would enhance the horse's performance. After delivering the milkshake and prior to leaving the track on May 27, 1993, Dr. Carinda engaged in the following conversation with Detective Gabriel: Carinda: (Unintelligible) now boys. Gabriel: Okay. Carinda: The rest is up to you. Gabriel: I certainly appreciate it Mikey. Carinda: Now if you come home as fast as you can leave. Gabriel: You know the horse, you know the horse. About a minute after Dr. Carinda left, Michael Metcalf used a dosing syringe to force the mixture that Carinda had delivered down the throat of Yankeeroughneck. After Mr. Metcalf administered the milkshake to Yankeeroughneck, Detective Gabriel retrieved the ziplock bag and transferred it to Detective Piroth. The bag contained the residue of the milkshake. On June 10, 1993, Dr. Carinda delivered a milkshake, containing sodium bicarbonate, confectioner's sugar, and water to Yankeeroughneck's groom. After Dr. Carinda left, Charles Giamanco and Michael Metcalf used a dosing syringe to force the milkshake down Yankeeroughneck's throat. Detective Gabriel retrieved the ziplock bag with the residue of the milkshake and transferred it to Detective Reubottom. Approximately two and one-half hours after the milkshake was administered on June 10, 1993, Yankeeroughneck raced at the Pompano Track. Dr. Carinda admitted that during the 1993 season he had participated in milkshaking race horses at the Pompano Track on at least 150 occasions.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered, finding that Dr. Michael Carinda violated Section 550.235(2), Florida Statutes, as set forth in Counts II and VII of the Second Amended Administrative Complaint, suspending his occupational license for a period of two years, assessing an administrative fine of $2,000, and dismissing Counts I, III, IV, V, VI, VIII, IX, and X of the Second Amended Administrative Complaint. DONE AND ENTERED this 11th day of December, 1997, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 11th day of December, 1997. COPIES FURNISHED: Madeline McGuckin Assistant General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007 James G. Brown, Jr., Esquire Law Offices of Brown & Brown 2700 West Atlantic Boulevard Suite 215 Pompano Beach, Florida 33069 Deborah R. Miller, Director Division of Pari-Mutuel Wagering Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue This is a case in which the Petitioner, for reasons set forth in an Amended Administrative Complaint and Notice of Intent to Deny License, seeks to impose administrative fines against the Respondent, seeks to suspend or revoke the Respondent’s thoroughbred racing permit, and seeks to deny the Respondent’s application for another thoroughbred racing license.
Findings Of Fact The parties The Petitioner is the State of Florida, Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering (Division), which is created by Section 20.165(2)(f), Florida Statutes. The Respondent has been the holder of a permit to conduct pari-mutuel wagering upon thoroughbred horse racing in Dade County, Florida, since 1978. Background facts The Respondent has between 1250 and 1350 stable stalls. Gulfstream, a nearby thoroughbred horse racing facility, has about 1450 stable stalls. Calder, another nearby thoroughbred horse racing facility, has about 1750 stable stalls. This larger number of stalls allows Calder to run races when other South Florida thoroughbred tracks are not running. The racing season of 1989-1990 was the first Florida thoroughbred horse-racing season after the statutory deregulation of racing dates. The 1989-1990 racing season was the first racing season during which the Respondent had other South Florida thoroughbred races competing with it on every date on which it was scheduled to race during that season. During the 1989-1990 racing season, the Respondent ran in direct competition with Tropical Park, which was a separate permit- holder owned by Calder. The Respondent’s annual license for the 1989-1990 racing season called for it to race on 141 days during that racing season, but it only raced on 28 days. The Respondent’s decision to cancel the remainder of its racing dates during the 1989-1990 season was due primarily to an insufficient number of available horses to field a full program of horses on a day-to-day basis on all of the days on which the Respondent was supposed to have races. Although the matter is not entirely free from doubt, it was believed by some horsemen at that time that the lack of a sufficient number of horses at Hialeah during the 1989-1990 racing season was due, at least in part, to alleged threats by functionaries of Calder to the effect that horses stabled at Calder that raced at the Respondent's race track that season would be evicted from the Calder stables.2 In 1989, Calder was owned by an individual named Bert Firestone. In 2002, Calder was owned by, and is still owned by, Churchill Downs, a public company. In 1989, Gulfstream was owned by the Donn family. In 2002, Gulfstream was owned by, and is still owned by, Magna Entertainment Corporation. In 1991, the deregulation legislation that permitted the competitive racing dates that first occurred during the 1989-1990 racing season was modified. The modification imposed tax penalties on race tracks that ran more than one of the three designated racing periods. The modification was, however, written to sunset in 2001. The effect of this modification was to give the Respondent a ten-year reprieve from head-to-head competition with Gulfstream and Calder. The Respondent lobbied for the passage of legislation that would, in effect, have forgiven the Respondent for failing to run its licensed race dates in March, April, and May of 2002. The legislation was enacted into law in 2002. Gulfstream filed a lawsuit challenging the constitutionality of that legislation. The legislation that would have forgiven the Respondent’s failure to run its races was eventually found to be unconstitutional. In 2003, the Respondent proposed additional legislation that would have forgiven the Respondent for not operating in the future. Gulfstream successfully lobbied against the passage of the legislation. The Respondent has a very large and very high quality turf course. Horsemen prefer the quality of the turf at the Respondent’s track, but they run at Gulfstream because of the better purses. Gulfstream and Calder both enter into revenue sharing contracts (called “50-50 contracts”) with the horsemen. The Respondent has never agreed to revenue sharing and typically paid only the statutory minimums. The 2001-2002 thoroughbred racing season On December 12, 2000, the Respondent filed an application for an annual license to conduct pari-mutuel operations at a thoroughbred racing meet during the 2001-2002 thoroughbred racing season. On February 13, 2001, the Division issued Respondent License Number 1300, for the 2001-2002 thoroughbred racing season. This license required Respondent to conduct 58 matinee thoroughbred performances from March 17, 2002, through May 22, 2002. The Respondent did not conduct any of the licensed thoroughbred performances from March 17, 2002, through May 22, 2002. The Respondent’s failure to conduct any of the licensed thoroughbred performances from March 17, 2002, through May 22, 2002, was not the direct result of a fire. The Respondent’s failure to conduct any of the licensed thoroughbred performances from March 17, 2002, through May 22, 2002, was not the direct result of a strike. The Respondent’s failure to conduct any of the licensed thoroughbred performances from March 17, 2002, through Mary 22, 2002, was not the direct result of a war. The Respondent’s failure to conduct any of the licensed thoroughbred performances from March 17, 2002, through May 22, 2002, was not the direct result of a disaster beyond the ability of Respondent to control. Annual licenses to conduct pari-mutuel operations at thoroughbred racing meets during the 2001-2002 thoroughbred racing season were also issued to Gulfstream and to Calder. The racing dates in these two racing licenses did not compete with each other, but they did compete with the racing dates in the annual license issued to the Respondent. The effect of the licenses issued by the Division for the 2001-2002 racing season was that the Respondent faced competing dates from Gulfstream from March 17 through April 24, 2002, and then faced competing dates from Calder from April 25 through May 22, 2002. The Respondent learned of the competing date applications filed by Gulfstream and Calder for the 2001-2002 racing season shortly after January 4, 2001. Upon discovering that the competing licenses had been requested, representatives of the Respondent attempted to contact representatives of Gulfstream and Calder to negotiate non-competing dates. Representatives of the Respondent also contacted race tracks outside of Florida to attempt to create a circuit comprised of northern horses that did not traditionally race in South Florida. Representatives of the Respondent did not make a significant effort to contact horsemen to obtain horses for the Respondent’s 2002 race dates. After learning that Gulfstream and Calder were not willing to change their dates, the Respondent’s Chairman of the Board, John J. Brunetti, asked the Respondent’s racing secretary, Sam Abbey, to inquire as to what horses could reasonably be expected to be shipped down to the Respondent’s stables for the 2001-2002 racing season. Mr. Abbey made only a half-hearted effort at such inquiries because it seemed to be pretty much a foregone conclusion that Hialeah was not going to race on its dates in the 2001-2002 season, and the few horsemen contacted by Mr. Abbey expressed no interest in coming to Hialeah for the 2001-2002 racing season. At all times material to this case, Kent H. Stirling has been the executive director of the Florida Horsemen's Benevolent and Protective Association. In that position, Mr. Stirling acts as a liaison between the race tracks and the horsemen, representing the interests of the horsemen. Among other things, Mr. Stirling negotiates purse contracts with the race track owners. Neither Mr. Brunetti nor Mr. Abbey contacted Mr. Sirling regarding the negotiation of a purse contract for the 2001-2002 racing season. In the normal course of events, purse contracts are negotiated six or seven months in advance of the race dates. Mr. Brunetti and the other people involved in the management of Hialeah never made a serious effort to conduct any races during the 2001-2002 racing season. Shortly after learning that they would have to run their races with direct competition that season, it appeared to be a foregone conclusion that Hialeah would not race that season because it did not want to race with direct competition.3 As early as May 22, 2001, Mr. Brunetti advised race fans in the program for Hialeah’s last racing day of the 2000-2001 season: “By now you have heard that Hialeah Park will probably end its racing career with our last racing day, May 22. This is sad, but true.” An early decision to not run any races during the 2001-2002 racing season is also evidenced by the fact that Mr. Brunetti never contacted Mr. Stirling to negotiate a purse contract for the 2001-2002 racing season. Mr. Brunetti’s decision not to race during the 2001- 2002 racing season appears to have been based largely on the notion that, because the 1989-1990 racing season with direct competition on race dates had been a total disaster, racing in 2001-2002 with direct competition would probably also be a disaster, so it was not worth doing.4 During the 2001-2002 and the 2002-2003 thoroughbred racing seasons, by reducing the number of horses per race to 8 or 9, or by reducing the number of races per day to 8 or 9, and by racing 5 days per week, the Respondent could have accommodated a sufficient number of horses in its own stables to have run all of its race dates during those two seasons.5 In the past, the Respondent has had racing programs where it ran only 8 races per day. With the exception of the opening and the closing days, the last year the Respondent ran its authorized dates, it ran 8 races each day. The 2002-2003 thoroughbred racing season On December 20, 2001, the Respondent filed an application for an annual license to conduct pari-mutuel operations at a thoroughbred racing meet during the 2002-2003 thoroughbred racing season. On February 14, 2002, the Division issued the Respondent License Number 1300 for the 2002-2003 thoroughbred racing season. This license required the Respondent to conduct 89 matinee thoroughbred performances from February 1, 2003, through May 14, 2003. On March 28, 2002, the Respondent filed an application to amend License Number 1300 for the 2002-2003 thoroughbred racing season requesting a change of the number of performances and dates. On April 12, 2002, the Division issued the Respondent an amended license, Number 1300-Amendment A, to conduct pari- mutuel operations for the 2002-2003 thoroughbred racing season. The amended license required the Respondent to conduct 73 matinee thoroughbred performances from January 3, 2003, through April 13, 2003. The Respondent did not conduct any of the licensed thoroughbred performances from January 3, 2003, through April 13, 2003. The Respondent’s failure to conduct any of the licensed thoroughbred performances from January 3, 2003, through April 13, 2003, was not the direct result of a fire. The Respondent’s failure to conduct any of the licensed thoroughbred performances from January 3, 2003, through April 13, 2003, was not the direct result of a strike. The Respondent’s failure to conduct any of the licensed thoroughbred performances from January 3, 2003, through April 13, 2003, was not the direct result of a war. The Respondent’s failure to conduct any of the licensed thoroughbred performances from January 3, 2003, through April 13, 2003, was not the direct result of a disaster beyond the ability of the Respondent to control. The circumstances during the 2002-2003 were similar to those of the prior racing season. Racing licenses for the 2002- 2003 thorough bred racing season were again also issued to Gulfstream and to Calder. These two licenses did not compete with each other, but one of them did compete with the license issued to the Respondent. The effect of the combined racing licenses issued by the Division for the 2002-2003 racing season was that the Respondent faced competing dates from Gulfstream from January 3 through April 13, 2003. The Respondent’s racing dates did not compete directly with Calder in 2003. For essentially the same reasons as the season before, Mr. Brunetti made an early decision not to race during the 2002- 2003 thoroughbred racing season. Mr. Brunetti never contacted Mr. Stirling to negotiate a purse contract for the 2002-2003 racing season. Mr. Brunetti never made any serious efforts to attempt to attract horses to race at the Respondent's facility during the 2002-2003 season. The 2003-2004 thoroughbred racing season On January 2, 2003, the Respondent filed its application for an annual license to conduct pari-mutuel operations at a thoroughbred-racing meet during the 2003-2004 thoroughbred racing season. The Respondent’s application that was filed on January 2, 2003, seeks 81 thoroughbred performances from January 3, 2003, through April 24, 2004. On February 14, 2003, the Division issued an Administrative Complaint and Notice of Intent to Deny License based upon Respondent’s failure to conduct thoroughbred performances in the 2001-2002 and 2002-2003 thoroughbred racing seasons. On March 31, 2003, the Respondent filed a request to amend its application for an annual license to conduct pari- mutuel operations at a thoroughbred racing meet during the 2003- 2004 thoroughbred racing season.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued in this case revoking the Respondent’s thoroughbred racing permit and denying the Respondent’s application for a racing license for the 2003- 2004 thoroughbred racing season. DONE AND ENTERED this 30th day of September, 2004, in Tallahassee, Leon County, Florida. S MICHAEL M. PARRISH 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 30th day of September, 2004.
The Issue The issues in the case are whether the licensee, Gene Ash, committed the violations described in the decision of the Judges/Stewards of Pompano Park Harness Track rendered on October 18, 1993, and, if so, what penalty should be imposed.
Findings Of Fact Petitioner is the state agency charged with the administration and regulation of the pari-mutuel wagering industry in the state of Florida pursuant to Chapter 550, Florida Statutes, and the rules promulgated thereunder. Respondent is a trainer of standardbred harness racing horses. Petitioner licensed Respondent to work as a trainer at pari-mutuel wagering facilities within the state of Florida pursuant to pari-mutuel occupational license number 0033544- 1081. Respondent has held such license at all times material to this proceeding. On August 20, 1993, Respondent was the trainer of record for Coast Express. Coast Express is a standardbred racing horse participating in harness racing at Pompano Park Harness Track (Pompano). Pompano is the holder of a valid permit to conduct harness racing for the purpose of conducting pari-mutuel wagering in Broward County, Florida. On August 20, 1993, Coast Express ran in the eighth race at Pompano. Coast Express won that race posting a time of 157.1, an individual best time for the horse. After the eighth race on August 20, 1993, Coast Express was taken to the detention barn at Pompano for collection of a urine sample to be analyzed by Petitioner's laboratory. Daniel Gogan, a groom working at Pompano, took Coast Express to the detention barn. Walter Mazur, Petitioner's veterinary assistant working in the detention barn, collected urine sample #908605 from Coast Express at 10:11 p.m. Daniel Gogan signed the sample card but Mr. Mazur was the only person in the stall at the time the sample was collected. Coast Express was the only horse under the care of Walter Mazur during the time the horse was in the detention area for collection of a urine sample. Samples are collected by placing the race horse in a stall with top and bottom doors. Generally, the Petitioner's veterinary assistant is the only person in the stall with the race horse. However, the trainer, or his groom, may observe the collection of the sample by watching through an open door. Trainers, or their grooms, are only allowed into the stall if invited by the veterinary assistant. After a sample has been collected, it is sealed and the sample tag is filled out. The sample tag records: (1) the date; (2) the sample number; (3) the horse's name, color, sex, and age; (4) the race in which the horse ran and its finishing position; (5) the track's name; (6) the name(s) of the horse's owner and trainer; and (7) the horse's tattoo number. The tag has three signature lines. The first line is for the veterinary assistant who collected the sample. The second line is for a witness to the sealing of the sample. The third line is for an owner's witness. The time required to collect a sample and seal it in its container is approximately two to five minutes. The sample tag for sample #908605 indicates that the sample was taken from Coast Express on August 20, 1993. The card shows that Coast Express finished first in the eighth race at Pompano. The card indicates that the horse was owned by Coast Express Stable and the trainer is Respondent. The card bears the signatures of: (1) Walter Mazur, veterinary assistant who took the sample; (2) Jim Meirs, supervisor of the detention area who witnessed the sealing of the sample; and (3) Daniel Gogan, witness for the owner. After the sample is collected it is stored in a locked freezer until it is packed for shipping to the Petitioner's laboratory in Tallahassee, Florida, the next working day. On August 23, 1993, Walter Mazur packed sample number 908605 into a sealed and locked box which was shipped to the Petitioner's laboratory via U.S. Air Mail. The record indicates that a total of sixteen samples were taken on August 20, 1993. Fourteen of these samples were urine samples. The record is not clear whether sample numbers 908607 and 908608 were blood only or urine only or both. Neither of them were logged on Petitioner's laboratory Report of Samples Logged dated August 23, 1993. There is no explanation in the record for a discrepancy between the number of samples taken on August 20, 1993 and the number of samples received by the laboratory on August 23, 1993. In any event, there is clear and convincing evidence that sample number 908605 was one of fourteen (14) urine samples received in Respondent's laboratory on August 23, 1993, with its seal intact in the sealed and locked box. On its receipt in the laboratory, sample number 908605 was assigned laboratory number 58511F. Petitioner's Bureau of Laboratory Services conducts screening tests of all samples received for analysis unless there is an insufficient sample or the sample is not properly secured. The first screening tests performed on laboratory sample number 58511F were a thin layer chromatography (TLC) analysis and an immunoassay screening known as an ELISA analysis. Both of these tests indicated that the sample was "suspicious" of containing a drug in the promazine family. When a sample is deemed suspicious by one of the screening tests, it is sent to the confirmation section of the laboratory for testing on an instrument called a gas chromatograph/mass spectrometer (GC/MS or GC/Mass Spec). This instrument is used to confirm the presence of metabolites of drugs which are present in the urine sample. In the instant case, the test was qualitative only even though the state chemists could have performed a quantitative analysis. Quantitative analysis is not done when the sample is "suspicious" of containing a drug in the promazine family because any amount of such drug in a urine sample is prohibited. The state laboratory file contains a copy of a Mass Spectrometry Method Sheet dated August 31, 1993, which states that the initial GC/MS test could not confirm for any promazine. The file also contains an undated hand written document entitled Suspicious HU Promazine Sample which states that, after ion-pair screening, the IP3 plate did not reveal promazines where they are normally indicated. These documents record the results of some of the initial screening and testing, and in no way detract from the reliability of the final testing and analysis. On September 9, 1993, Carrie Delcomyn, Petitioner's Confirmation Chemist II, requested that David Tiffany, Petitioner's SA/MD Chemist Administrator, run appropriate ELISA screening on the two (2) hour and four (4) hour promazine administrations, numbers 45595B and 45596B, because they were to be used for a possible confirmation of a promazine metabolite seen in the suspect sample. That same day, David Tiffany responded that promazine was not detected using the IDS promazine assay. Mr. Tiffany's response does not imply that the subsequent testing for confirmation of a promazine metabolite in the suspect sample failed to identify 3-hydroxypromazine. In the final analysis, testing and retesting of laboratory sample number 58511F with the GC/MS confirmed the presence of 3-hydroxypromazine, a metabolite of promazine (a tranquilizer and class 3 drug). Someone would have to administer promazine to a horse for it to produce a urine sample containing 3-hydroxypromazine. A chemist administrator reviews the file of a positive sample to ensure the integrity of the chain of custody before a sample is conclusively labeled "positive." A proper chain of custody is an integral part of the positive sample review process. In this case, David Tiffany reviewed the file for sample number 58511F and found it to be in proper order. On October 22, 1993, a Report of Positive Results was generated by Patrick T. Russell, Petitioner's Bureau Chief, Bureau of Laboratory Services. This report was sent to William E. Tabor, Director of the Division of Pari- Mutuel Wagering, and states that sample number 908605 (laboratory number 58511F) contained 3-hydroxypromazine (a tranquilizer and Class 3 drug). The record contains no explanation for the discrepancy in the date of the report and the date the Judges/Stewards issued their ruling on October 18, 1993. On November 3, 1993, Respondent requested a split sample analysis pursuant to Section 550.2415(5), Florida Statutes and Rule 61D-1.010, Florida Administrative Code. The split sample was sent to and analyzed by Center for Tox Services, an independent laboratory. Testing of the split sample confirmed the result of the state laboratory. A letter dated November 17, 1993, from the independent laboratory states that: . . .the laboratory was able to detect the 3-OH promazine utilizing both ELISA and GC/MS techniques. We had no difficulty in detecting the substance using GC/MS. The primary reason for easy detection was due to the fact that the metabolite was present at a concentration that exceeded our detection limit or met our criteria for full scale analysis. There is no doubt that 3-OH promazine was present in the sample we analyzed. The GC/MS operator did not set-up his analysis to quantitate the amount of 3-OH promazine in the urine sample. It was not requested. The above quoted passage from the Center for Tox Services letter clearly does not contain any implications as to the quantity of promazine administered to Coast Express. The testimony of Dr. Mark Phillips, the horse's veterinarian, implied that a quantity of promazine administered could be established by virtue of the positive tests reported by the state and independent laboratories. His opinion regarding the quantity and effect of a dosage of promazine which would test positive on a GC/MS instrument is rejected because it is based on technology which is no longer up to date with current testing standards. Additionally Dr. Phillips testimony is contrary to the testimony of Petitioner's expert, David Tiffany, which is more persuasive. Promazine is a drug used as a tranquilizer. It is possible for a horse to race well after having been administered a very small dose of promazine. This would be particularly true if the horse had a history of being "hot." "Hot" is a term commonly used in the standardbred horse racing industry for a horse that is nervous and difficult to handle. A very small dose of promazine could enhance the performance of a "hot" horse by calming it down. Under those circumstances, the horse might not exhibit behavioral changes which would be noticeable, i. e. the horse might still appear to be "hot." On the other hand, a normal dose of promazine would cause a horse to be too sluggish to race. Coast Express was typically a "hot" horse. On August 20, 1993, there was no discernible difference in his behavior. He was "hot", hard to handle, and the opposite of calm or sluggish. It was apparent that Coast Express had not been given a normal tranquilizing dose of promazine. However, there is clear and convincing record evidence that some amount of promazine was in his system on August 20, 1993, which could have enhanced his performance and enabled him to set a record time of 157.1. Respondent's experts testified that Coast Express's individual best time of 157.1 on August 20, 1993, is consistent with his immediate racing history of 157.3 on August 13, 1993, and September 3, 1993. This testimony is rejected to the extent it implies that the horse's system was free of promazine on August 20, 1993, because it is contrary to more persuasive evidence. Promazine is a prescription drug. Dr. Mark Phillips, Coast Express's veterinarian, testified that he never prescribed promazine for the horse. Promazine is normally fed to a horse. Coast Express is a very picky eater and probably would not eat feed with a drug in it. However, promazine can also be injected. There is no evidence that Respondent or anyone under his control administered promazine to Coast Express. There is no evidence that either of the owners, Nellie Hammel and Fred Segal, administered the drug. However, record evidence indicates that for a period of time on race day, Coast Express was left unsupervised. Someone could have given the drug to Coast Express during that time. Respondent presented positive testimony relative to his character and good reputation in the harness racing industry.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, the undersigned recommends that the Petitioner issue a Final Order finding that Respondent, as trainer of record for the horse Coast Express, is responsible for a violation of Section 2415(1)(a), Florida Statutes, occurring on August 20, 1993, at Pompano. Additionally, the undersigned recommends that said Final Order: (1) suspend Respondent's occupational license for forty-five (45) days; (2) deny Respondent use of the Pompano stable area during his suspension; (3) declare any horse Respondent owns or trains ineligible to race during his suspension; (4) redistribute the purse of $2,750 won in the subject race; (5) disqualify and replace Coast Express in the subject race; and (6) disallow Coast Express from holding the lifetime mark of 157.1 RECOMMENDED in Tallahassee, Leon County, Florida, this 23rd day of February, 1995. SUZANNE F. HOOD, Hearing Officer 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 23rd day of February, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-5018 The following constitute specific rulings, pursuant to Section 120.59(2) Florida Statutes, on the parties' respective proposed findings of fact: Petitioner's Proposed Findings of Fact: 1-7 Accepted in substance and incorporated in paragraphs 1-7 pursuant to the parties' stipulation of facts. 8-20 Accepted in substance and incorporated in paragraphs 8-20. Accepted in paragraph 23. Accepted in paragraph 24. 23-24 Accepted in paragraph 25. Accepted in paragraph 26. Accepted in paragraph 27. Accepted in paragraph 29. Accepted in paragraph 30. Accepted in paragraph 28. Respondent's Proposed Findings of Fact: 1-5 Accepted in paragraphs 1-5. Accepted in part in paragraph 6 and rejected in part in paragraph 32. Except for subordinate information, accepted in paragraphs 7-9 and 15-16. Accepted in paragraphs 19 and 21-22. 9-10 Not included in Respondent's proposed findings of fact. Accepted in paragraph 20. Accepted in paragraph 27. Accepted in paragraphs 30-31 as modified. Accepted in part in paragraph 31 but last sentence rejected as contrary to more persuasive evidence. Accepted in paragraph 26 as modified. Accepted in paragraphs 33-34. Accepted in paragraph 36 for consideration only as to appropriate discipline. COPIES FURNISHED: Joseph M. Helton, Jr. Senior Attorney Dept. of Business & Professional Regulation Division of Pari-Mutuel Wagering 1940 North Monroe Street Tim A. Shane, Esquire 2455 East Sunrise Blvd. Suite 905 Fort Lauderdale, Florida 33304 George Stewart, Acting Secretary Morthwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Jack McRay Acting General Counsel Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue is whether the proposed amendment to Florida Administrative Code Rule 61D-3.001 is an invalid exercise of delegated legislative authority.
Findings Of Fact The Division is the agency responsible for enacting administrative rules within the scope of its delegated legislative authority as set forth in chapter 550, Florida Statutes, as the statutes contained therein are amended from time to time. Petitioner, FHBPA, is a Florida not-for-profit corporation whose purposes, as set forth in its Amended and Restated Articles of Incorporation filed with the Secretary of State on December 5, 2005, include, but are not limited to, the following: A. to advance, foster, and promote, generally, the sport of thoroughbred horse racing and the thoroughbred horse racing industry in the State of Florida; * * * D. to establish standards for racetrack conditions and equine care, safety, health, treatment, and well-being; * * * to foster professional integrity among horsemen and the horse racing industry and to develop a code of ethics governing the behavior of those persons engaged therein; * * * to cooperate with equine and humane organizations and public and private agencies, regulatory authorities, racing associations, racing commissions and other organizations located in Florida including, for example, the Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering (the “Division”), and its departments and sub-divisions. and the public, in formulating fair and appropriate laws, rules, regulations and conditions that affect in any manner pari-mutuel wagering and awards, and are deemed to be in the best interests of horsemen, their employees, backstretch personnel, and the horse racing industry in general, and to ensure the enforcement of such rules is fair and equitable; * * * J. to represent the interests of its members, before any local, state, or federal administrative, legislative, and judicial fora including, but not limited to, the Division with regard to all matters affecting horsemen and the horse racing industry. Currently, the FHBPA represents more than 200 Florida licensed thoroughbred horse trainers and more than 5,000 Florida licensed thoroughbred horse owners. Pursuant to its Amended and Restated Articles of Incorporation and applicable law, the FHBPA has associational standing to file and prosecute this petition challenging the proposed amendment to rule 61D-3.001 on behalf of its members. Petitioner, Gulfstream Park, is the holder of a pari-mutuel permit issued by the Division authorizing thoroughbred horse racing at its permitted facility in Broward County. It is directly and substantially affected by the proposed amendment to rule 61D-3.001. Current rule 61D-3.001(2) provides that alleged violations of chapter 550 or chapter 61D in horseracing “shall be heard by a board of stewards. Each horseracing permitholder shall establish a board of three stewards, at least one of whom shall be the state/division steward selected and hired by the division.” Current rule 61D-3.001(19) provides, in relevant part: (19) Orders. In the event the stewards … determine a statute or rule has been violated and a penalty of a license suspension of 60 days or less, or a fine not to exceed $1,000 is sufficient to address the violation, the stewards or division judge shall enter an order within 14 days after the hearing. The order shall include a caption, time and place of the hearing, findings of fact, statement of rules or statutes violated, and a ruling stating the length of any suspension and the amount of the fine imposed for each violation. In the event the stewards … determine a statute or rule has been violated and a penalty of a license suspension of greater than 60 days, or a fine of greater than $1,000 should be imposed for the violation, the stewards or division judge shall forward a recommendation to the division stating their findings of fact, statement of statutes or rules violated, and recommended penalty within 14 days after the hearing. The recommendation shall be served to each party at the time it is forwarded to the division. A party shall have 14 days from the date the recommendation is issued in which to file a response with the division prior to the entry of a final order. Subsection (19) of the current rule plainly contemplates that the stewards may make factual findings sufficient to permit them to “determine a statute or rule has been violated.” The language of subsection (19) has been in place since June 26, 2011. Section 120.80 is titled “Exceptions and special requirements; agencies.” The statute sets forth various exceptions to the requirements of chapter 120 for specific agencies in specific situations. Section 120.80(4) sets forth the exceptions and special requirements for the Department of Business and Professional Regulation. Section 120.80(4)(a) is the provision cited by the Division as one of the statutes implemented by both the current rule and the proposed amendment to rule 61D-3.001. Section 120.80(4)(a) provides: (a) Business regulation.—The Division of Pari- mutuel Wagering is exempt from the hearing and notice requirements of ss. 120.569 and 120.57(1)(a), but only for stewards, judges, and boards of judges when the hearing is to be held for the purpose of the imposition of fines or suspensions as provided by rules of the Division of Pari-mutuel Wagering, but not for revocations, and only upon violations of subparagraphs 1.-6. The Division of Pari-mutuel Wagering shall adopt rules establishing alternative procedures, including a hearing upon reasonable notice, for the following violations: Horse riding, harness riding, greyhound interference, and jai alai game actions in violation of chapter 550. Application and usage of drugs and medication to horses, greyhounds, and jai alai players in violation of chapter 550. Maintaining or possessing any device which could be used for the injection or other infusion of a prohibited drug to horses, greyhounds, and jai alai players in violation of chapter 550. Suspensions under reciprocity agreements between the Division of Pari-mutuel Wagering and regulatory agencies of other states. Assault or other crimes of violence on premises licensed for pari-mutuel wagering. Prearranging the outcome of any race or game. Section 120.569 is titled “Decisions which affect substantial interests.” Subsection (1) provides as follows: The provisions of this section apply in all proceedings in which the substantial interests of a party are determined by an agency, unless the parties are proceeding under s. 120.573 [mediation of disputes] or s. 120.574 [summary hearings]. Unless waived by all parties, s. 120.57(1) applies whenever the proceeding involves a disputed issue of material fact. Unless otherwise agreed, s. 120.57(2) applies in all other cases. If a disputed issue of material fact arises during a proceeding under s. 120.57(2), then, unless waived by all parties, the proceeding under s. 120.57(2) shall be terminated and a proceeding under s. 120.57(1) shall be conducted. Parties shall be notified of any order, including a final order. Unless waived, a copy of the order shall be delivered or mailed to each party or the party’s attorney of record at the address of record. Each notice shall inform the recipient of any administrative hearing or judicial review that is available under this section, s. 120.57, or s. 120.68; shall indicate the procedure which must be followed to obtain the hearing or judicial review; and shall state the time limits which apply. (emphasis added). Section 120.57 is titled “Additional procedures for particular cases.” Section 120.57(1) sets forth “additional procedures applicable to hearings involving disputed issues of material fact” and section 120.57(2) sets forth “additional procedures applicable to hearings not involving disputed issues of material fact.” Subsection (1)(a) provides: (a) Except as provided in ss. 120.80 and 120.81, an administrative law judge assigned by the division shall conduct all hearings under this subsection, except for hearings before agency heads or a member thereof. If the administrative law judge assigned to a hearing becomes unavailable, the division shall assign another administrative law judge who shall use any existing record and receive any additional evidence or argument, if any, which the new administrative law judge finds necessary. In the absence of an exception in section 120.80 or 120.81, a case involving a disputed issue of material fact must be heard by an ALJ or an agency head or member thereof. Section 120.57(2) gives agencies greater discretion in hearings not involving disputed issues of material fact to agency discretion: ADDITIONAL PROCEDURES APPLICABLE TO HEARINGS NOT INVOLVING DISPUTED ISSUES OF MATERIAL FACT.— In any case to which subsection (1) does not apply: The agency shall: Give reasonable notice to affected persons of the action of the agency, whether proposed or already taken, or of its decision to refuse action, together with a summary of the factual, legal, and policy grounds therefor. Give parties or their counsel the option, at a convenient time and place, to present to the agency or hearing officer written or oral evidence in opposition to the action of the agency or to its refusal to act, or a written statement challenging the grounds upon which the agency has chosen to justify its action or inaction. If the objections of the parties are overruled, provide a written explanation within 7 days. An agency may not base agency action that determines the substantial interests of a party on an unadopted rule or a rule that is an invalid exercise of delegated legislative authority. The record shall only consist of: The notice and summary of grounds. Evidence received. All written statements submitted. Any decision overruling objections. All matters placed on the record after an ex parte communication. The official transcript. Any decision, opinion, order, or report by the presiding officer. Section 120.80(4)(a) exempts the Division from the hearing and notice requirements of sections 120.569 and 120.57(1) for hearings before stewards “when the hearing is to be held for the purpose of the imposition of fines or suspensions” for violations of subparagraphs 1.-6. Section 120.80(4)(a) does not exempt the Division from the hearing and notice requirements of sections 120.569 and 120.57(1)(a) for license revocations. The statute requires the Division to adopt rules establishing “alterative procedures” for the stewards’ hearings under subparagraphs 1.-6. It is notable that section 120.80(4)(a) does not under any circumstance exempt the Division from section 120.57(1)(b)-(n), which provides the procedural due process rights of parties to administrative hearings involving disputed issues of material fact. The narrow exemption provided by section 120.80(4)(a) allows the Division to retain jurisdiction over cases involving disputed issues of material fact rather than refer them to DOAH or have them heard by the agency head or a member thereof as would otherwise be required by sections 120.569(1) and 120.57(1)(a). Stewards may hold formal hearings that carry the penalty of fines or suspensions for the violations listed in section 120.80(4)(a)1.-6., but must respect the procedural rights established by section 120.57(1)(b)-(n). Nothing about the interplay of sections 120.57 and 120.80 suggests that stewards lack the authority to resolve disputed issues of material fact in the hearings subject to their jurisdiction. The Legislature’s exemption of the Division from only subsection (1)(a) of section 120.57 strongly suggests the opposite. The Division’s current rule 61D-3.001 clearly anticipates that stewards will resolve disputed issues of material fact in order to determine whether a statute or rule has been violated. The text of the proposed rule amendment indicates that the Division has revised its view of the statutory authority conferred by section 120.80(4)(a). The following are the most problematic portions of the proposed amendment: Hearings Conducted by a Board of Stewards: All proceedings for alleged violations indicated in subsection (1)(b) of this rule shall be heard by a Board of Stewards unless the division indicates in its administrative complaint that it is seeking revocation of a licensee’s pari-mutuel license or the Board of Stewards relinquishes jurisdiction as required by the Florida Administrative Code and/or Florida Statutes. Allegations of the following violations shall be heard by a Board of Stewards: Horse riding and harness riding actions in violation of Chapter 550, F.S. Application and usage of drugs and medication to horses in violation of Chapter 550, F.S. Maintaining or possessing any device which could be used for the injection or other infusion of a prohibited drug to horses in violation of Chapter 550, F.S. Suspensions under reciprocity agreements between the Division of Pari-Mutuel Wagering and regulatory agencies of other states involving horse racing. Assault or other crimes of violence on premises licensed for horse racing. Prearranging the outcome of any pari-mutuel horse racing event. * * * Procedures Applicable to Hearings by a Board of Stewards: * * * Conduct of Hearings Before a Board of Stewards The division shall have an opportunity to present to the Board of Stewards the undisputed facts of the alleged violation and any evidence of mitigation or aggravation for purposes of deciding a penalty. All parties shall have an opportunity to present evidence and witnesses regarding mitigation for purposes of deciding a penalty. All witnesses shall be sworn in by a member of the Board of Stewards and are subject to examination, cross-examination, and questioning by any member of the Board of Stewards. All parties shall have an opportunity to present legal arguments to the Board of Stewards, including interpretation of applicable division rules and statutes. * * * (4) Disputes of Material Fact: The Board of Stewards does not have jurisdiction to hear cases involving genuine issues of material fact. For purposes of this rule, a material fact is a fact that is essential to the determination of whether the respondent committed the alleged violation. Once a disputed issue of material fact is presented, the Board of Stewards must relinquish jurisdiction over the proceeding back to the division to be governed by Section 120.57(1), F.S., and referred to the Division of Administrative Hearings. The Division’s rationale for the proposed amendment is that section 120.80(4)(a) only allows stewards to impose fines or suspensions upon licensees, not to make factual determinations as to the underlying violations. The Division argues that if a matter requires anything more than a decision over the imposition of a fine or suspension when the violation is undisputed, then the exemption in section 120.80(4)(a) is no longer operative and the hearing and notice requirements of sections 120.569 and 120.57(1)(a) apply to force the stewards to refer the case to DOAH. The Division concludes that the proposed amendment does not limit the stewards’ jurisdiction but merely restates the limitations imposed by section 120.80(4)(a). The undersigned finds that the Division’s reading of the statute, while colorable if one considers the language of section 120.80(4)(a) narrowly and in isolation from the other provisions it cites, is fundamentally backward. As noted above, the only portion of section 120.57 that the Division is ever exempted from is subsection (1)(a). Thus, under section 120.80(4)(a), when the stewards go forward with their hearings to impose fines or suspensions, they remain subject to the provisions of section 120.57(1)(b)-(n). These provisions contain repeated specific references to the disputed issues of material fact that the Division argues stewards lack the jurisdiction to decide. For example: Section 120.57(1)(b) states that parties must be provided the opportunity “to submit proposed findings of facts and orders.” There would be no need to submit proposed findings of fact in the stewards’ hearings contemplated by the Division. Section 120.57(1)(c) sets forth the limitation on the use of hearsay in a section 120.57(1) hearing, a provision that would not be necessary in a proceeding with no disputed facts. Section 120.57(1)(d) provides, in relevant part, “Notwithstanding s. 120.569(2)(g), similar fact evidence of other violations, wrongs, or acts is admissible when relevant to prove a material fact in issue, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, but it is inadmissible when the evidence is relevant solely to prove bad character or propensity.” (Emphasis added.) Again, this provision would not be necessary for a stewards’ hearing as contemplated by the Division, yet is fully applicable to the stewards’ hearings under section 120.80(4)(a). Section 120.57(1)(j) provides that “Findings of fact shall be based upon a preponderance of the evidence, except in penal or licensure disciplinary proceedings or except as otherwise provided by statute, and shall be based exclusively on the evidence of record and on matters officially recognized.” The jurisdictional authority of stewards is established by section 550.1155, the full text of which is as follows: 550.1155 Authority of stewards, judges, panel of judges, or player’s manager to impose penalties against occupational licensees; disposition of funds collected.— The stewards at a horse racetrack; the judges at a dog track[3]; or the judges, a panel of judges, or a player’s manager at a jai alai fronton may impose a civil penalty against any occupational licensee for violation of the pari-mutuel laws or any rule adopted by the division. The penalty may not exceed $1,000 for each count or separate offense or exceed 60 days of suspension for each count or separate offense. All penalties imposed and collected pursuant to this section at each horse or dog racetrack or jai alai fronton shall be deposited into a board of relief fund established by the pari-mutuel permitholder. Each association shall name a board of relief composed of three of its officers, with the general manager of the permitholder being the ex officio treasurer of such board. Moneys deposited into the 3 References to dog racing in this section have been eliminated by section 13, CS/SB 8A, approved by the Governor on May 25, 2021. As of the writing of this Final Order, the bill has not been codified. Therefore, the statute has been quoted in its 2020 form. board of relief fund shall be disbursed by the board for the specific purpose of aiding occupational licenseholders and their immediate family members at each pari-mutuel facility. When section 550.1155 is read in conjunction with section 120.80(4)(a), it is clear that the Legislature contemplated racetrack stewards having full authority to hear cases and impose the limited discipline of fines and suspensions against occupational licensees for violation of the pari-mutuel laws or Division rules, including cases involving disputed issues of material fact. Section 120.80(4)(a) does not extend that authority to cases seeking license revocation, which is consistent with the provisions of section 550.1155. The proposed amendment to rule 61D-3.001 provides that stewards may conduct only hearings not involving disputed issues of material fact. The board of stewards’ jurisdiction is expressly limited to hearings in cases with “undisputed facts” as to the violation. Evidence may be presented only as regards to mitigation or aggravation of the penalty for the violation. The proposed amendment requires the board of stewards to relinquish jurisdiction of the case to DOAH whenever a disputed issue of material fact arises, meaning that it strictly follows section 120.57(1)(a) in the face of the express exemption from that provision set forth in section 120.80(4). The authority of an agency to conduct hearings not involving disputed issues of material fact without resort to DOAH is codified in sections 120.569(1) and 120.57. The proposed amendment purports to implement section 120.80(4), but in fact ignores the exemption provided therein. In this, the proposed rule clearly contravenes the provisions of the statute it purports to implement. The Division’s reasoning, while erroneous, does not rise to the level of being arbitrary or capricious. The language of section 120.80(4)(a), restricting the exemption to hearings “held for the purpose of the imposition of fines or suspensions,” standing alone, could reasonably lead to the conclusion reached by the Division that the stewards’ hearings should be limited to instances in which the facts of the violation are undisputed and the only question is the level of discipline to be imposed. It is when section 120.80(4)(a) is placed in the context of sections 120.569(1), 120.57(1)(a), and 550.1155 that the Division’s error becomes apparent. The Division should have made the observation that sections 120.569(1) and 120.57(1)(a) require the agency to send disputed fact hearings to DOAH, and that section 120.80(4) provides an exemption from that requirement. The Division then should have asked, “If the stewards are already precluded from hearing cases involving disputed issues of material fact by section 120.569(1), then what does the exemption in section 120.80(4)(a) do?” It being impermissible for an executive branch agency to read a statute as mere surplusage, the exemption must mean that certain defined disputed fact hearings may be conducted by the agency without the need to refer the matter to DOAH.4 4 This reading is supported by the fact that section 120.80 exempts several other entities from section 120.57(1)(a): section 120.80(2)(b) exempts the Department of Agriculture and Consumer Services from section 120.57(1)(a) for hearings held pursuant to the Florida Citrus Code, chapter 601, Florida Statutes; section 120.80(7) exempts the Department of Children and Families from section 120.57(1)(a) for certain social and economic programs; section 120.80(8)(a) exempts the Department of Highway Safety and Motor Vehicles from section 120.57(1)(a) for hearings regarding driver licensing pursuant to chapter 322, Florida Statutes, and section 120.80(8)(b) exempts the same agency from section 120.57(1)(a) for hearings to deny, suspend, or remove a wrecker operator from participating in the wrecker rotation system established by section 321.051, Florida Statutes; section 120.80(10)(c) exempts the Department of Economic Opportunity from section 120.57(1)(a) for hearings held under the Reemployment Assistance Program law, chapter 443, Florida Statutes; section 120.80(12) generally exempts the Public Employees Relations Commission from section 120.57(1)(a); and section 120.80(15) provides that the Department of Health is exempt from section 120.57(1)(a) for hearings conducted “in execution of the Special Supplemental Nutrition Program for Women, Infants, and Children; Child Care Food Program; Children’s Medical Services Program; the Brain and Spinal Cord Injury Program; and the exemption from disqualification reviews for certified nurse assistants program.” The language of these exemptions is not uniform. In most instances, the statute states that the agency may conduct the hearings in-house “notwithstanding s. 120.57(1)(a).” In some instances, the language appears to give the agency the option of sending the case to DOAH or keeping it in-house. In none of the exemptions is there any indication that the hearing to be conducted by the agency may not resolve disputed issues of material fact. As explained above, the Division’s reasoning went in another direction. The undersigned finds the Division’s reasoning wrong but not irrational, or completely lacking in logic, and therefore not arbitrary or capricious. In light of the findings above, it is unnecessary to make extensive findings as to Petitioners’ other main contention, i.e., that the proposed amendment too closely mirrors DOAH procedures to be considered an “alternative procedure” under section 120.80(4)(a). The undersigned is persuaded that the Division had the better argument on this point. The statute does not define “alternative procedures.” The “alternative procedures” the Division adopts in its rule would still have to be consistent with administrative due process and thus would be expected to bear at least some passing similarity to the procedures of the Administrative Procedure Act. How similar the alternatives may become before they cease to be “alternative” under the statute is a question for another day.
Findings Of Fact On or about November 9, 1983, the Respondents submitted applications to petitioner for the issuance of thoroughbred horse owner's licenses. On the application, Kourkoumelis represented that he owned 100 percent interest in Rozen, Inc., and further represented that Rozen, Inc., owned four thoroughbred race horses, including the horse "Hexgreave Star." The applications were processed by Petitioner, and Kourkoumelis was issued license Number 0171691, and Rozen, Inc., was issued license Number 0231210. The foal papers on Hexgreave Star, which are the official ownership papers of the horse, reflect that the horse was acquired by Rozen, Inc., from Cynthia Elliott on August 7, 1983. That date reflects the last transfer of the horse listed on the foal papers, up to and including the date of the hearing. Hexgreave Star was foaled in England and shipped to the United States sometime around November of 1982. A statement from the International Horse Services reveals that K. Richardson of Jubilee Farms was billed for the shipping expenses. However, there is no competent credible evidence of record to establish the identity of the true owner of Hexgreave Star at the time he was shipped from England. The horse was subsequently vaned from its port of entry in New York to Hialeah Race Track in the care of trainer Robert Elliott, the husband of Cynthia Elliott. On November 10, 1982, the Jockey Club issued foal papers to Robert Elliott, registering him as the first owner of the horse in the United States. Elliott was the owner of record of Hextreave Star until February 7, 1983, when ownership of the horse was transferred to his wife, Cynthia Elliott, for "$1.00 and other consideration." From that date forward, until August 7, 1983, Cynthia Elliott was the listed owner of Hexgreave Star. Financial support for Hexgreave Star was initially provided by a wire transfer into the Elliotts' joint bank account in the amount of $2,000 on or about November 22, 1982. This money was wired from an account in Liechtenstein maintained in the name of an organization known as "Fallig Finanz." There is no evidence of record in this cause to connect the operation of Fallig Finanz with either Kenneth Richardson, Kourkoumelis, or the Elliotts. A second $2,000 was wired into the Elliotts' account from Fallig Finanz at the end of the month of November, 1982. Part of this money was used to open a trainer's account for Hexgreave Star in Robert Elliott's name. Checks from that account were used to pay for the care of Hextreave Star in December, 1952, and January, 1953. During the months of November and December of 1982 and January of 1983, Hexgreave Star raced in Florida under Robert Elliott's name. The ownership of the horse was transferred to Cynthia Elliott on February 7, 1983, in anticipation of Robert Elliott's return to England. No money was exchanged between Mr. and Mrs. Elliott at the time of the transfer. After the transfer of the horse's ownership from Mr. Elliott to Mrs. Elliott, Kenneth Richardson and Cynthia Elliott opened a joint checking account at the Southeast Bank. Richardson initially deposited $2,000 into that account which was used for the upkeep and maintenance of Hexgreave Star. The account was generally used as a horseman's account from March until June, 1983. On April 1, 1983, an additional $2,000 was wired into the account from Liechtenstein. After February 7, 1983, Hexgreave Star raced under Cynthia Elliott's name in Florida; at Monmouth Park, New Jersey; Penn National Race Track in Pennsylvania; and Belmont Park in New York. The racing accounts of Hexgreave Star reflect that the horse earned in excess of $47,000 in purses during that time. Approximately $30,000 of that money was paid to Kenneth Richardson by Mrs. Elliott in two separate payments on July 28 and August 4, 1983. Cynthia Elliott met Peter Kourkoumelis through her husband, Robert Elliott, on January 31, 1982. Mrs. Elliott saw Kourkoumelis with Kenneth Richardson on two occasions at Gulfstream Park in 1983. Throughout the time that Cynthia Elliott was racing Hexgreave Star under her own name, she was frequently in contact with Kenneth Richardson. During the summer of 1983, beginning with the Hialeah meeting, questions regarding the identity and ownership of Hexgreave Star were raised with Cynthia Elliott by the Thoroughbred Racing Protective Bureau (TRPB) and the Jockey Club. Beginning in June of 1983, Mrs. Elliott notified Richardson of these inquiries, and continued to keep Richardson apprised as the TRPB continued its investigation. In the last week of July, 1983, Cynthia Elliott met with Kenneth Richardson, his son Andrew, and Peter Kourkoumelis at the Floral Park Motel in Belmont, New York, to discuss the fortunes of Hexgreave Star. In a subsequent meeting, Mrs. Elliott presented Kenneth Richardson with a list of expenses and deductions, and the remaining funds from the horse's winnings. Rozen, Inc., was incorporated in Florida on August 1983. Kourkoumelis was listed as the corporation's sole director and officer. On August 3, 1983, Cynthia Elliott signed a bill of sale purporting to transfer her interest in Hexgreave Star to Rozen, Inc. Also on August 3, 1983, an agreement was entered into between Cynthia Elliott and Rozen, Inc., for the care and training of Hexgreave Star. Present at the signing of the agreement were Cynthia Elliott; Peter Kourkoumelis, who signed the agreement as president of Rozen, Inc.; and Kenneth Richardson and Andrew Richardson. By the terms of the agreement, Cynthia Elliott was authorized to train Hexgreave Star, but Rozen, Inc., was to make major managerial decisions concerning the horse. The agreement provided that the horse ". . . is the sole property of Rozen, Inc.", and that all prize money won by the horse was payable to Rozen, Inc., less 10 percent in fees, $30 per day training fees, and blacksmith and veterinarian bills. After the execution of the August 3, 1983, agreement, Cynthia Elliott continued to pay for the care and upkeep of Hexgreave Star from funds left in the track account. On August 9, 1983, Mrs. Elliott purchased an insurance policy on Hexgreave Star in the amount of $50,000. The horse was insured in the name of Rozen, Inc., and the premium of $3,612.50 was paid by Mrs. Elliott from funds left in the track account. Through the middle of September, 1983, Mrs. Elliott provided for the care and maintenance of Hexgreave Star through funds that were left in the track account. She itemized her expenses and showed them to Richardson on August 19, 1983, in England. By separate letters dated September 22, 1983, Cynthia Elliott notified Kenneth Richardson and Peter Kourkoumelis of her decision to resign her position with Rozen, Inc. There is no evidence of record to establish what, if any, transaction occurred concerning Hexgreave Star between September 22, 1983, and November 9, 1983, the date on which Kourkoumelis and Rozen, Inc., allegedly falsified their license applications. There is no direct evidence, or, indeed, any credible evidence at all, to establish that Kourkoumelis was aware of the manner in which Hexgreave Star had been handled between Kenneth Richardson, and Robert and Cynthia Elliot. Further, there is no competent credible evidence of record to establish either that anyone other than Peter Kourkoumelis and Rozen, Inc., owned Hexgreave Star on November 9, 1983.
Findings Of Fact The Division of Pari-Mutuel Wagering of the Florida Department of Business Regulation is an agency charged with responsibility for implementation and enforcement of the statutory framework governing the conduct of pari-mutuel operations in Florida. The Division's agency head is its Director. The Division has initiated proceedings to adopt rules to establish procedures whereby dog racing tracks and jai alai frontons will select dates for matinee performances. Proposed Rule 7E-2.03 relates to the scheduling of matinee programs by dog racing tracks. It provides in pertinent part: The application [the track's application for an annual license, operating dates, meetings and the number of performances] shall designate the matinee programs to be conducted by the association. Each association shall be permitted during its authorized meeting to conduct a maximum of 54 matinee programs on the days of its choice. Provided, however, that no association located in a county where there is a thoroughbred association or within a radius of 35 miles of another pari-mutuel association shall be permitted to conduct more than 3 matinee programs during any calendar week of its authorized meeting, except that a matinee program can be scheduled on New Year's Day, Memorial Day, July 4th, Labor Day and Thanksgiving Day. Provided, further, that in those counties where a thoroughbred association is authorized to have dark during its meeting all other pari-mutuel associations in the same county may conduct their matinee programs on any or all such dark days as long as the total for the respective association does not exceed 54 matinee programs. Proposed Rule 7E-3.03(32) relates to selection of matinee dates by jai alai frontons, and contains language that is functionally identical to Proposed Rule 7E-2.03. The effect of these proposed rules would be to allow dog racing tracks and jai alai frontons to schedule up to fifty-four matinee programs during their authorized operating dates. If the track or fronton is located in a county where there is a horse racetrack, no more than three matinee programs can be scheduled during any calendar week, except for the designated holidays. The Respondent conducted a public hearing with respect to the proposed rules on January 19, 1981. The Petitioners, Calder Race Course, Inc., and Tropical Park, Inc.; and the Intervenors Gulfstream Park Racing Association and Hialeah, Inc., are horse racetrack operators. These parties are affected by the proposed rules because the proposed rules would allow dog racing tracks and jai alai frontons to operate matinee programs at the same time that horse race programs are being run by these parties. The Intervenors WJA Realty; Biscayne Kennel Club, et al.; and St. Petersburg Kennel Club are operators of dog racing tracks or jai alai frontons. They are affected by the proposed rules because the proposed rules would allow dog racing tracks and jai alai frontons to operate matinee programs at the same time that horse race programs are being run by these parties. The horse racetrack parties are located in Dade County or Broward County, Florida. They conduct only daytime, matinee programs. The dog track and jai alai fronton parties, other than St. Petersburg Kennel Club, Inc., operate in Dade County and Broward County, Florida. They are all located within a radius of thirty-five miles of other pari-mutuel associations, and in the same county with thoroughbred associations. Prior to 1970, dog tracks and jai alai frontons in Southeast Florida conducted nighttime programs almost exclusively. Horse track operators conducted, and continue to conduct, only matinee programs. During the decade of the 1970's, dog tracks and jai alai frontons began conducting an increasing number of matinee programs under various regulatory systems imposed by the Division of Pari-Mutuel Wagering, or its predecessors. In 1978 the Division adopted a policy which is in all material respects identical to the policy that the Division is seeking to implement through the adopting of the rules which are the subject of this proceeding. While it appears to have been the Division's intent to adopt the policy as a rule in 1978, the policy was never formally filed with the Office of the Secretary of State, and was therefore not adopted as a rule. It has, nonetheless, been in operational effect since 1978. The Division's experience with the policy has been favorable. Dog track and jai alai fronton operators have chosen days for operating matinee programs which are most profitable. The State obtains revenue from these operations based upon a percentage of the "handle" or the dollar volume that goes through a facility on a given day. The more money an operation takes in, the more revenue the State obtains. The State's experience with the matinee policy has been favorable from a revenue generating perspective. Horse track operators are to some degree affected by having dog tracks and jai alai frontons operating conflicting matinee programs. The degree of this effect has not been established with any precision. Horse track operators have experienced operational difficulties during the past decade. Many factors have contributed to these difficulties. It has not been established that having matinee competition from dog tracks and jai alai frontons has been a significant factor. Various statistics were presented by the parties in an effort to show either that matinee competition has resulted in a diminution of the handle of horse racetracks, or the contrary. The statistics were not prepared in such a manner as to isolate the impact of matinee competition upon the revenues of horse racetracks. Even if any such findings could be isolated from the statistics that have been presented, the conclusions would be conflicting. Certainly having competition drains some customers from horse racetracks. The extent of this impact cannot, however, be determined from the evidence presented in this proceeding.
The Issue The Petitioner has accused the Respondent, Frank Rudolph Solimena, with a violation of Rule 7E-1.06(11)(a), Florida Administrative Code, which reads: The running of a horse in a race with any narcotic, stimulant, depressant or local anesthetic is prohibited. If the stewards shall find that any narcotic, stimulant, depressant or local anesthetic has been administered or attempted to be administered, internally or externally, to a horse before a race, such stewards shall impose such punishment and take such other action as they may deem proper under any of the rules, including reference to the Division, against every person found by them to have administered, or to have attempted to administer, or to have caused to be administered, or to have caused an attempt to administer, or to have conspired with another person to administer, such narcotic, stimulant, depressant or local anesthetic. If the Division laboratory shall find a positive identification of such medication, such finding shall constitute prima facie evidence that such horse raced with the medication in its system. Under the accusation, the Respondent is made responsible pursuant to the provisions of Rule 7E-1.18(3), Florida Administrative Code, referred to herein as the absolute insurer's rule, which provides that: The trainer shall be responsible for, and be the insurer of the condition of the horses he enters. Trainers are presumed to know the rules of the Division. Specifically, Respondent Solimena is accused under facts that allege that on December 4, 1978 a horse trained by the Respondent was entered and ran in the second race at Tropical Park, Inc. (at Calder Race Couse). Subsequent to the race a urine specimen was taken from the horse and the specimen was analyzed by the Petitioner's laboratory. It is further alleged that the Division of Pari- Mutuel Wagering laboratory reported the results of the test and that the report showed that the urine sample contained Despropionyl Fentanyl, which is classified as a derivative of Fentanyl, a narcotic compound.
Findings Of Fact This cause comes on for consideration based upon a Notice to Show Cause (Administrative Complaint) filed by the Petitioner, State of Florida, Department of Business Regulation, Division of Pari-Mutuel Wagering, against Frank Rudolph Solimena. At all times pertinent to the Notice to Show Cause, Frank Rudolph Solimena was the holder of license Nos. K-00257 and 5-00863, issued by the Petitioner to the Respondent, Frank Rudolph Solimena, enabling Solimena to operate as horse trainer and horse owner, respectively, at the several race tracks located in the State of Florida. The Petitioner, State of Florida, Department of Business Regulation, Division of Pari-Mutuel Wagering, is an agency of the State of Florida charged with the duty of the regulation of, among other things, the matters pertaining to thoroughbred horse racing in the State of Florida. The authority for such regulation is found in Chapter 550, Florida Statutes, and those rules promulgated to enforce the provisions of that chapter. Within that body of rules, are Rules 7E-1.06(11)(a) and 7E-1.18(3), Florida Administrative Code, alluded to in the issues statement of this Recommended Order. Those rules as set out in the issues statement shall serve as a basis for determining the facts and reaching the legal conclusions necessary to formulate a decision in this matter and official recognition is taken of the aforementioned rules. The facts in this case show that the Respondent, Frank Rudolph Solimena, was acting as a horse trainer on December 4, 1978, at Tropical Park, Inc., in Florida. On that date, Carpe Diem, a horse trained by the Respondent, ran in the second race and finished in first position. Following the race, and on the same date, a urine specimen was taken from the horse, Carpe Diem. That urine specimen was subsequently analyzed through a series of tests and the test directed to the urine sample revealed a positive identification of a substance known as Dispropionyl Fentanyl, which is classified as a derivative of Fentanyl, a narcotic. The process which occurred in Carpe Diem after he received the Fentanyl, was that the Fentanyl was metabolized in the horse's system to become Dispropionyl Fentanyl, and that latter substance acted as a central nervous system stimulant in the horse during the course of the race. The narcotic, Fentanyl, carries the trade name, Sublimaze. The horse referred to above was under the care and treatment of Carl J. Meyer, D.V.M., on the date of the race in question. In addition to treating this horse that is the subject of this complaint, Dr. Meyer had treated other horses for which the Respondent was the trainer, beginning in 1976 and continuing through December, 1978. One of the conditions for which the disputed horse and other horses trained by the Respondent reportedly received treatment was a condition described by Dr. Meyer as Myopathy. 1/ This treatment form was administered to Carpe Diem on the date of the disputed race event. According to Dr. Meyer, Myopathy is a treatment for muscle soreness and is a type acupuncture in which needles are injected at pressure points over the sore muscles and authorized medications are injected into those muscle areas, to include ACTH, Stroids and Lasix. When the Respondent received one of the billing statements from Dr. Meyer which indicated that horses that were being trained by the Respondent had been treated for Myopathy, the Respondent inquired of Dr. Meyer what Myopathy treatments consisted of. Dr. Meyer at that point told the Respondent that you take a needle and put it in certain pressure points in the muscle to relieve bursitis and/or pressure. When questioned in the course of the hearing about further details of the treatment for Myopathy, Dr. Meyer was unable to give a satisfactory explanation of the origins of the treatment for Myopathy and literature related to that treatment which might have been published through research in veterinary medicine. Within the same time frame that Dr. Meyer claimed to be treating the subject horse for Myopathy, he had purchased the substance, Sublimaze, and by his testimony stated that this narcotic had been used on horses other than the one involved in this accusation. The use in the unrelated group of horses was as a pre-anesthetic agent and to treat colic conditions. He claimed to use 18 milligrams as a pre-anesthetic dose and as much as 25 milligrams over a period of time to control the colic condition. The utilization of Sublimaze as a pre-anesthetic agent and for treatment for colic was disputed in the course of the bearing by the testimony of Dr. George Maylin, D.V.M., who also has a Ph.D. in pharmacology. At the time Dr. Maylin gave his testimony, he was an associate professor of toxicology at the New York State College of Veterinary Medicine, Cornell University, Ithica, New York. Dr. Maylin has done extensive research on the effect of Sublimaze as a pre-anesthetic agent and concludes that it is not a predictable anesthetic agent, and that a 10 milligram dosage would not have a desired effect in the use of pre-anesthetic cases. In Dr. Maylin's opinion, 50 milligrams would be the indicated amount. In addition, Dr. Maylin's extensive testing of Sublimaze in a colic model situation pointed out the ineffectiveness of Sublimaze as an analgesic in those colic cases. Finally, Dr. Maylin does not believe that 25 milligrams of Sublimaze over an extended period of time could be effective in treating the colic condition. Other trainers had horses which had been treated by Dr. Meyer around the same time period as the horse of the Respondent, which is the subject of this hearing. Those trainers are Ohayneo Reyes and Edward E. Plesa. Both Reyes and Plesa questioned Dr. Meyer on the subject of Meyer injecting Sublimaze in their race horses. Those questions were asked following accusations placed against those trainers for violations similar to those in the current case of the Respondent. The answers given to Reyes and Plesa by Dr. Meyer indicated that he had in fact injected the horses with Sublimaze, but he told them not to worry because the substance could not be detected. Dr. Meyer also testified in the course of the hearing that he had placed wagers on some of the horses being treated for Myopathy. An analysis of the evidence leads to the factual conclusion that Dr. Meyer infused Carpe Diem, for which the Respondent stands accused through this Notice to Show Cause, with Sublimaze, otherwise identified as Fentanyl, and that he gave those injections under the guise of a treatment for Myopathy, when in fact the so-called treatment for Myopathy was a ruse to enable Dr. Meyer to administer the Sublimaze. This act by Dr. Meyer directed to the horse of the Respondent involved in this accusation, was unknown to the Respondent at the time the injection was administered and nothing that had transpired prior to this placed Respondent in the position of having reason to believe that Dr. Meyer was pursuing this course of conduct. In summary, although the horse in question ran in the subject race while under the effects of Fentanyl, metabolized to become Dispropionyl Fentanyl, it was not through an act of the Respondent.
Recommendation It is recommended that the action through the Notice to Show Cause against the Respondent, Frank Rudolph Solimena, be DISMISSED. DONE AND ENTERED this 10th day of September, 1979, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32381 (904) 488-9675
The Issue The issues for disposition in this case are whether proposed rules 61D-2.024(5); 61D-2.025(1), (2), (4), (7), and (8)(a); 61D- 2.028(2)(a)-(d), (6), (7), and (8); and 61D-2.029 are invalid exercises of delegated legislative authority as defined in section 120.52(8), Florida Statutes.
Findings Of Fact Petitioner is the horsemen’s association that represents the majority of the quarter horse owners and trainers at Gretna Racing, LLC (“Gretna Racing”). Gretna Racing holds a pari-mutuel permit and annual operating license that authorizes Gretna Racing to conduct pari-mutuel wagering on quarter horse races pursuant to chapter 550, Florida Statutes. The Horsemen’s Agreement between Petitioner and Gretna Racing has been filed with the Division in accordance with sections 550.002(11) and 849.086(13)(d)3. As the organization representing the majority of the horsemen participating in horse racing events conducted at Gretna Racing, NFHA is the statutorily-entitled recipient to the purses paid for the performances at Gretna Racing. Petitioner has approximately 200 members, the majority of whom are owners, trainers, and jockeys of American Quarter Horses and other breeds that are authorized to participate in pari-mutuel quarter horse races. The Division has issued occupational licenses to the majority of Petitioner’s members. Respondent, Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering (Respondent or Division), is the state agency charged with regulating pari- mutuel wagering activities in Florida pursuant to chapter 550. Intervenor is tasked by statute with certain functions concerning the conduct and promotion of pari-mutuel quarter horse racing at racetracks throughout Florida. Intervenor is the Florida affiliate of the American Quarter Horse Association (AQHA), which is the national quarter horse membership organization responsible for maintaining uniform standards for American quarter horse racing worldwide. NFHA’s members engage in non-traditional quarter horse racing, including “barrel match” and “flag drop” racing. Barrel match racing involves two adjacent rectangular tracks on which the horses and riders complete a cloverleaf pattern around preset barrels. Flag drop racing involves two or more horses racing simultaneously on a common, straight course of approximately 100 yards in length that is started by a flag drop, rather than a starting box or gate. Gretna Racing’s existing track configuration supports these forms of quarter horse racing. NFHA’s members and their horses are specifically trained for barrel match and flag drop racing and most would require extensive additional training to participate in other racing formats. Barrel match racing and flag drop racing, as they have been conducted at Gretna Racing, will not be capable of being run on quarter horse tracks that meet the standards to be adopted by proposed rules 61D-2.024 and 61D-2.025. Many of Petitioner’s members will not meet the jockey requirements to be adopted by proposed rule 61D-2.028 without additional training, and would be required to purchase racing uniforms under the proposed rule. On October 19, 2011, the Division issued an annual operating license to Gretna Racing, which authorized it to conduct racing performances under its previously-issued quarter horse racing permit during the 2011/2012 season. For reasons best explained by Administrative Law Judge John Van Laningham in Florida Quarter Horse Racing Association, Inc. v. Department of Business & Professional Regulation, Case No. 11-5796RU (Fla. DOAH May 6, 2013), the annual operating license had the effect of approving the conduct of barrel races at Gretna Racing. Following the Division’s issuance of the annual operating license to Gretna Racing, FQHRA challenged the Division’s approval of pari-mutuel barrel match racing as an unadopted rule. After an evidentiary hearing, a Final Order was issued on May 6, 2013, determining that “the policy of the Division pursuant to which "Gretna-style" barrel match racing is treated as the legal equivalent of traditional quarter horse racing, so that a quarter horse racing permitholder is able to obtain an annual license authorizing pari-mutuel wagering operations on barrel match racing, is an unadopted rule which violates section 120.54(1)(a), Florida Statutes.” Florida Quarter Horse Racing Ass’n, Inc. v. Dep’t of Bus. & Prof’l Reg., DOAH Case No. 11-5796RU at 78. The Final Order was affirmed by the First District Court of Appeal, quoting Judge Van Laningham with approval, that: To be legal and enforceable, a policy which operates as law must be formally adopted in public, through the transparent process of the rulemaking procedure set forth in section 120.54. In sum, the Division's policy of licensing the conduct of pari- mutuel wagering on [barrel match racing], on the ground that [barrel match racing] is legally equivalent to quarter horse racing, constitutes an unadopted rule. As such, it violates section 120.54(1)(a). Fla. Quarter Horse Track Ass’n, Inc. v. Dep’t of Bus. & Prof’l Reg., 133 So. 3d 1118, 1119-1120 (Fla. 1st DCA 2014). Following the entry of that Final Order, NFHA entered into a Consent Order with the Division that allows match races started by a flag drop as a pari-mutuel event pending the adoption of rules establishing standards for quarter horse racing. As a result of the Final Order, the Division began its rule development process for the proposed rules at issue in this proceeding when a Notice of Development of Rulemaking was published on September 6, 2013, in Volume 39, Number 174 of the Florida Administrative Register. A rule development workshop was held on October 16, 2013, in Fort Lauderdale, Florida. A second Notice of Development of Rulemaking was published on August 6, 2014, in Volume 40, Number 152 of the Florida Administrative Register. Another rule development workshop was held on August 27, 2014, in Orlando, Florida. The Division published a third Notice of Development of Rulemaking on December 24, 2014, in Volume 40, Number 248 of the Florida Administrative Register. A final rule development workshop was held on January 14, 2015, in Tallahassee, Florida. Representatives of numerous entities, including NFHA and FQHRA, participated in the workshops. On June 30, 2015, the Division published Notice of Proposed Rules 61D-2.024 through 61D-2.029 in Volume 41, Number 126 of the Florida Administrative Register. A public hearing was held on July 20, 2015, where representatives of numerous interested entities spoke and submitted written comments. On July 28, 2015, the Division published a Notice of Change to the proposed rules in Volume 41, Number 145 of the Florida Administrative Register. NFHA filed a petition challenging several of the proposed rules on July 30, 2015. On August 21, 2015, NFHA filed an Amended Petition to Determine Invalidity of Proposed Rules, which was accepted by the ALJ. FQHRA filed a Motion to Intervene in the case on September 18, 2015. That motion was granted on September 22, 2015. NFHA’s Amended Petition challenged the following rules proposed by the Division: 61D-2.024(5); 61D-2.025(1), (2), (4), (7) and (8)(a); 61D-2.028(2)(a)-(d), (6), (7), and (8); and 61D- 2.029. The challenged rules purport to implement provisions of chapter 550, which governs pari-mutuel wagering. NFHA contends that the challenged rules are an invalid exercise of the Division’s delegated legislative authority because, in violation of section 120.52(8)(b), the Division is exceeding its grant of rulemaking authority in adopting the rules and, in violation of section 120.52(8)(c), the challenged rules enlarge, modify, or contravene the law implemented. NFHA further contends that each of the challenged rules violates the “flush left” language in section 120.52(8). Finally, NFHA asserts that proposed rules 61D-2.028(2)(a)-(d), (6), (7), and (8); and 61D-2.029 are vague in violation of section 120.52(8)(d).
The Issue The Petitioner has accused the Respondent, Frank Rudolph Solimena, with a violation of Rule 7E-1.06(11)(a) Florida Administrative Code, which reads: "The running of a horse in a race with any narcotic, stimulant, depressant or local anesthetic is prohibited. If the stewards shall find that any narcotic, stimulant, depressant or local anesthetic has been administered or attempted to be administered, internally or externally, to a horse before a race, such stewards shall impose such punishment and take such other action as they may deem proper under any of the rules, including reference to the Division, against every person found by them to have admini- stered, or to have attempted to administer, or to have caused to be administered, or to have caused an attempt to administer, or to have conspired with another person to administer, such narcotic, stimulant, depressant or local anesthetic. If the Division laboratory shall find a positive identification of such medication, such finding shall constitute prima facie evidence that such horse raced with the medication in its system." Under the accusation, the Respondent is made responsible pursuant to the provisions of Rule 7E-1.18(3), Florida Administrative Code, referred to herein as the absolute insurer's rule, which provides that: "The trainer shall be responsible for, and be the insurer of the condition of the horses he enters. Trainers are presumed to know the rules of the Division." Specifically, Respondent Solimena is accused under facts that allege that during the period from October 6 through October 30, 1978 horses trained by the Respondent were entered and ran in five separate races at Calder race course. Subsequent to each race a urine specimen was taken from each horse and that each specimen was analyzed by the Petitioner's laboratory. It is further alleged that the Division of Pari-Mutuel Wagering laboratory reported the results of the tests and that each report showed that each urine sample contained Despropionyl Fentanyl, which is classified as a derivative of Fentanyl, a narcotic compound.
Findings Of Fact This cause comes on for consideration based upon a Notice to Show Cause (Administrative Complaint) filed by the Petitioner, State of Florida, Department of Business Regulation, Division of Pari-Mutuel Wagering, against Frank Rudolph Solimena. At all times pertinent to the Notice to Show Cause, Frank Rudolph Solimena was the holder of license Nos. K-00257 and K-00863, issued by the Petitioner to the Respondent, Frank Rudolph Solimena, enabling Solimena to operate as horse trainer and horse owner, respectively, at the several race tracks located in the State of Florida. The Petitioner, State of Florida, Department of Business Regulation, Division of Pari-Mutuel Wagering, is an agency of the State of Florida charged with the duty of the regulation of, among other things, the matters pertaining to thoroughbred horse racing in the State of Florida. The authority for such regulation is found in Chapter 550, Florida Statutes, and those rules promulgated to enforce the provisions of that chapter. Within that body of rules, are Rules 7E-1.06(11)(a) and 7E-1.18(3), Florida Administrative code, alluded to in the issues statement of this Recommended Order. Those rules as set out in the issues statement shall serve as a basis for determining the facts and reaching the legal conclusions necessary to formulate a decision in this matter and official recognition is taken of the aforementioned rules. The facts in this case show that the Respondent, Frank Rudolph Solimena, was acting as a horse trainer on October 6, 1978, at the Calder Race Course in Broward County, Florida. On that date, Myth Master, a horse trained by the Respondent, ran in the second race and finished in second position. Following the race, and on the same date, a urine specimen was taken from the horse, Myth Master. That urine specimen was subsequently analyzed through a series of tests and the test directed to the urine sample revealed a positive identification of a substance known as Despropionyl Fentanyl, which is classified as a derivative of Fentanyl, a narcotic. The process which occurred in Myth Master after he received the Fentanyl, was that the Fentanyl was metabolized in the horse's system to become Despropionyl Fentanyl, and that latter substance acted as a central nervous system stimulant in the horse during the course of the race. The narcotic Fentanyl, carries the trade name, Sublimaze. The facts in this case show that the Respondent, Frank Rudolph Solimena, was acting as a horse trainer on October 13, 1978, at the Calder Race Course in Broward County, Florida. On that date, Turbine Powered, a horse trained by the Respondent, ran in the fourth race and finished in second place. Following the race, and on the same date, a urine specimen was taken from the horse, Turbine Powered. That urine specimen was subsequently analyzed through a series of tests and the test directed to the urine sample revealed a positive identification of a substance known as Despropionyl Fentanyl, which is classified as a derivative of Fentanyl, a narcotic. The process which occurred in Turbine Powered after he received the Fentanyl, was that the Fentanyl was metabolized in the horse's system to become Despropionyl Fentanyl, and that latter substance acted as a central nervous system stimulant in the horse during the course of the race. The narcotic Fentanyl, carries the trade name, Sublimaze. The facts in this case show that the Respondent, Frank Rudolph Solimena, was acting as a horse trainer on October 26, 1978, at the Calder Race Course in Broward County, Florida. On that date, Myth Master, a horse trained by the Respondent, ran in the tenth race and finished in second place. Following the race, and on the same date, a urine specimen was taken from the horse, Myth Master. That urine specimen was subsequently analyzed through a series of tests and the test directed to the urine sample revealed a positive identification of a substance known as Despropionyl Fentanyl, which is classified as a derivative of Fentanyl, a narcotic. The process which occurred in Myth Master after he received the Fentanyl, was that that Fentanyl was metabolized in the horse's system to become Despropionyl Fentanyl, and that latter substances acted as a central nervous system stimulant in the horse during the course of the race. The narcotic, Fentanyl, carries the trade name, Sublimaze. The facts in this case show that the Respondent, Frank Rudolph Solimena, was acting as a horse trainer on October 28, 1978, at the Calder Race Course in Broward County, Florida. On that date, Ladrillazo, a horse trained by the Respondent, ran in the sixth race and finished in first place. Following the race, and on the same date, a urine specimen was taken from the horse, Ladrillazo. That urine specimen was subsequently analyzed through a series of tests and the test directed to the urine sample revealed a positive identification of a substance known as Despropionyl Fentanyl, which is classified as a derivative of Fentanyl, a narcotic. The process which occurred in Ladrillazo after he received the Fentanyl, was that that Fentanyl was metabolized in the horse's system to become Despropionyl Fentanyl, and that latter substances acted as a central nervous system stimulant in the horse during the course of the race. The narcotic, Fentanyl, carries the trade name, Sublimaze. The facts in this case show that the Respondent, Frank Rudolph Solimena, was acting as a horse trainer on October 30, 1978, at the Calder Race Course in Broward County, Florida. On that date, Triple Rhythm, a horse trained by the Respondent, ran in the eighth race and finished in second place. Following the race, and on the same date, a urine specimen was taken from the horse, Triple Rhythm. That urine specimen was subsequently analyzed through a series of tests and the test directed to the urine sample revealed a positive identification of a substance known as Despropionyl Fentanyl, which is classified as a derivative of Fentanyl, a narcotic. The process which occurred in Triple Rhythm after he received the Fentanyl, was that that Fentanyl was metabolized in the horse's system to become Despropionyl Fentanyl, and that latter substances acted as a central nervous system stimulant in the horse during the course of the race. The narcotic, Fentanyl, carries the trade name, Sublimaze. Each of the horses referred to above was under the care and treatment of Carl J. Meyer, D.V.M., on the dates of the races in question. In addition to treating the horses that are the subject to this complaint, Dr. Meyer had treated other horses for which the Respondent was the trainer, beginning in 1976 and continuing through October of 1978. One of the conditions for which the disputed horses reportedly received treatment was a condition described by Dr. Meyer as Myopathy, and this treatment form was administered to each of the questioned horses on the date of the disputed race event. According to dr. Meyer, Myopathy is a treatment for muscle soreness and is a type of acupuncture in which needles are injected at pressure points over the sore muscles and authorized medications are injected into those muscle areas, to include ACTH, Steroids and Lasix. When the Respondent received one of the billing statements from Dr. Meyer which indicated that horses that were being trained by the Respondent had been treated for Myopathy, the Respondent inquired of Dr. Meyer what Myopathy treatments consisted of. Dr. Meyer replied that you take a needle and put in certain pressure points in the muscle to relieve bursitis and/or pressure. When questioned in the course of the hearing about further details of the treatment for Myopathy, Dr. Meyer was unable to give a satisfactory explanation of the origins of the treatment for Myopathy and literature related to that treatment which might have been published through research in veterinary medicine. Within the same time frame that Dr. Meyer claimed to be treating the subject horses for Myopathy, he had purchased the substance, Sublimaze, and by his testimony stated that this narcotic had been used on horses other than those involved in this accusation. The use in the unrelated group of horses was as a pre-anesthetic agent and to treat colic conditions. He claimed to use 10 milligrams as a pre-anesthetic dose and as much as 25 milligrams over a period of time to control the colic condition. The utilization of Sublimaze as a pre-anesthetic agent and for treatment for colic was disputed in the course of the hearing by the testimony of Dr. George Maylin, D.V.M., who also has a Ph.D. in pharmacology. At the time Dr. Maylin gave his testimony, he was an associate professor of toxicology at the New York State College of Veterinary Medicine, Cornell University, Ithica, New York. Dr. Maylin has done extensive research on the effect of Sublimaze as a pre-anesthetic agent and concludes that it is not a predictable anesthetic agent, and that a 10 milligram dosage would not have a desired effect in its use as a pre-anesthetic agent. In dr. Maylin's opinion, 50 milligrams would be the indicated amount. In addition, Dr. Maylins' testing of Sublimaze in a colic model situation pointed out the ineffectiveness of Sublimaze as an analgesic in those colic cases. Finally, Dr. Maylin does not believe that 25 milligrams of Sublimaze over an extended period of time could be effective in treating the colic condition. Other trainers had horses which had been treated by Dr. Meyer around the same time period as those horses of the Respondent, which are the subject of this hearing. Those trainers are Ohayneo Reyes and Edward E. Plesa. Both Reyes and Plesa questioned Dr. Meyer on the subject of Meyer injecting Sublimaze in their race horses. These questions were asked following accusations placed against those trainers for violations similar to those in the current case of the Respondent. The answers given to Reyes and Plesa by Dr. Meyer indicated that he had in fact injected the horses with Sublimaze, but he told them not to worry because the substance could not be detected. Dr. Meyer also testified in the coarse of the hearing that he had placed wagers on some of the horses being treated for Myopathy. An analysis of the evidence leads to the factual conclusion that Dr. Meyer infused each of the horses for which the Respondent stands accused through this Notice to Show Cause, with Sublimaze, otherwise identified as Fentanyl; and that he gave these injections under the guise of a treatment for Myopathy, when in fact the so-called treatment for Myopathy was a ruse to enable Dr. Meyer to administer the Sublimaze. Those acts by Dr. Meyer directed to the horses of the Respondent involved in this accusation, were unknown to the Respondent at the time the injections were administered and nothing that had transpired prior to those administrations placed the Respondent in the position of having reason to believe that Dr. Meyer was pursuing this course of conduct. In summary, although the horses in question ran in the subject races while under the effects of Fentanyl, metabolized to become Despropionyl Fentanyl, it was not through any acts of the Respondent.
Recommendation It is recommended that the action through the Notice to Show Cause against the Respondent, Frank Rudolph Solimena, be DISMISSED. DONE AND ENTERED this 23rd day of August, 1979, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: W. S. Frates, Esquire Frates, Floyd, Pearson, Stewart, Richman & Greer, P.A. One Biscayne Tower, 25th Floor Miami, Florida 33131 David M. Maloney, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Joel S. Fass, Esquire Colodny and Fass 626 Northeast 124th Street North Miami, Florida 33181 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF BUSINESS REGULATION DIVISION OF PARI-MUTUEL WAGERING STATE OF FLORIDA, DEPARTMENT OF BUSINESS REGULATION, DIVISION OF PARI-MUTUEL WAGERING, Petitioner, vs. CASE NO. 79-228 FRANK RUDOLPH SOLIMENA, Respondent. /
Findings Of Fact The parties At all times material hereto, respondents, Grover C. Wheeler (Wheeler) and Robert L. Miller (Miller) held pari-mutual wagering occupational license numbers 0292781 and 0303824, respectively. Wheeler is licensed as a horse owner and trainer, and Miller is licensed as a horse owner. Respondents, William W. McKibbin (McKibbin) and Gaylord Huenfeld (Huenfeld) are the owners of the quarterhorses "OJ's Diamond" and "Makeaduckdance", respectively. At all times material hereto, McKibbin and Huenfeld had employed Wheeler to train and race their horses. The 1987 quarterhorse meet During the 1987 quarterhorse meet at Pompano Park Race Track, an association authorized to conduct quarterhorse racing in the State of Florida, Wheeler was the trainer of a number of horses, including "OJ's Diamond", "Makeaduckdance", "Mr. Tony B. Tuff", "Saint Shining", and "The Game Time." Miller, although licensed as a horse owner, was a full-time employee of Wheeler. On May 13, 1987, Wheeler ran "OJ's Diamond" in the First Division Laddie Stake trials. "OJ's Diamond" was the winner of the trials, and thereby qualified for the Laddie Stake Race to be held on May 22, 1987. When the Laddie Stake Race was run on May 22, 1987, "OJ's Diamond" won, and McKibbin was awarded the first place purse for the race. On May 14, 1987, Wheeler ran "Makeaduckdance" in the Seventh Division Lassie Stake trials. "Makeaduckdance" was the winner of the trials and thereby qualified for the Lassie Stake race on May 22, 1987. When the Lassie Stake race was run on May 22, 1987, "Makeaduckdance" won, and Huenfeld was awarded the first place purse for the race. On May 15, 1987, Wheeler ran "Mr. Tony B. Tuff" in the sixth race at Pompano Park. "Mr. Tony B. Tuff" finished second in that race. Between the eighth and ninth race of May 15, 1987, David Boyd, then chief investigator for the Division of Pari-Mutual Wagering, accompanied Dr. Phillips, a veterinarian, to Wheeler's barn to witness the treatment of a horse. Upon arriving at the barn, Mr. Boyd observed Miller and another individual later identified as Bruce Edmunds, a quarterhorse trainer and acquaintance of Wheeler. Mr. Boyd observed Miller call Edmunds over to him and engage in a brief conversation, after which Edmunds proceeded to a plastic bucket located under the shed row of Wheeler's barn, which he removed to Wheeler's tack room. Considering Edmunds' and Miller's behavior unusual, Mr. Boyd followed Edmunds to Wheeler's tack room where he confronted Edmunds with his credentials and inspected the contents of the bucket. At that time, Mr. Boyd learned that Edmunds did not own the bucket, but had been requested by Miller to remove it from the shed row to the tack room. An inventory and analysis of the contents of the bucket revealed the presence of hypodermic needles, syringes, and various injectable bottles which contained Buprenorphine, Naloxon, and Oxymorphone, all narcotic drugs. Additionally, a racing program was found among the contents of the bucket which contained both Wheeler's and Miller's fingerprints. While Wheeler was not present at the barn when the bucket was discovered, the evidence links him and Miller inexplicably to it and its contents. Notably, Wheeler was observed in his tack room on May 13, 1987, with an injectable type syringe. Following Mr. Boyd's discovery, the state steward was notified, and the horses Wheeler had entered in the eleventh and twelfth races, "Saint Shining" and "The Game Time," respectively, were scratched on suspicion that they may be under the influence of a narcotic. Subsequently, the urine samples that had been taken from "OJ's Diamond" following its win on May 13, 1987, from "Makeaduckdance" following its win on May 14, 1987, and from "Mr. Tony B. Tuff", "Saint Shining" and "The Game Time", following the discovery of the bucket on May 15, 1987, were analyzed. Upon analysis, the urine samples taken from each horse proved positive for the presence of Buprenorphine, a narcotic drug. Buprenorphine is a synthetic morphine derivative which, in low dosage, has a stimulatory effect on animals. In such doses, the drug will cause a horse to exceed its natural running ability. At no time did Wheeler or any respondent offer any proof that the subject drugs were possessed or administered under the authority of a prescription issued by a physician or veterinarian, nor did they notify the state steward that such substances would be upon the association's premises.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department enter a final order as follows: Revoking Wheeler's trainer and horse owner license number 0292781. Sustaining the suspension of Miller's owner license number 0303824, and suspending such license for the period commencing on the date of its emergency suspension until the date of the final order entered herein. Redistributing the purses awarded in the Laddie and Lassie Stakes finals according to revised racing results based on the disqualification of "OJ's Diamond" and "Makeaduckdance." DONE AND ENTERED in Tallahassee, Leon County, Florida, this 30th day of September, 1988. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1050 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of September, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NOs. 88-0993, 88-1335, 88-1336, 88-1337, 88-1338 Petitioner's proposed findings of fact are addressed as follows: Addressed in paragraph 1. Addressed in paragraphs 3-6 and 10. 2(sic)-4. Addressed in paragraphs 12 and 13. Addressed in paragraphs 7 and 8. Addressed in paragraph 9. Addressed in paragraphs 9 and 10. Addressed in paragraph 14. COPIES FURNISHED: W. Douglas Moody, Esquire Deputy General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007 Norman Rose, Esquire Attorney for Grover C. Wheeler and Gaylord Huenfeld Radice Corporate Center 800 Corporate Drive Suite 224 For Lauderdale, Florida 33334 Robert L. Miller, Esquire Post Office Box 3611 Plant City, Florida 34289 William W. McKibbin 4603 Northwest 6th Street Gainesville, Florida 32609 Van B. Poole, Secretary Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000 Billy Vessel, Director Pari-Mutual Wagering 1350 Northwest 12th Avenue Room 332 Miami, Florida 33136-2169 Joseph A. Sole, Esquire General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1000
