The Issue Whether Rule 61D-6.002(1), Florida Administrative Code, is an invalid exercise of delegated legislative authority.
Findings Of Fact Hennessey is the holder of an unrestricted U-1 Professional Pari-mutuel License authorizing him to train horses, which license is issued to Hennessey by the Department pursuant to the provisions of Section 550.105, Florida Statutes. Hennessey was charged in a hearing before the Stewards at Pompano Park with violating the provisions of Section 550.2415, Florida Statutes, regarding an impermissible drug found in a race horse entered to race by Hennessey. The disciplinary action was initiated by the Stewards against Hennessey after a post-race urine sample taken from a horse trained by Hennessey won a race at Pompano Park indicated the presence of two substances, caffeine and theophylline, a metabolite of caffeine. Hennessey testified at the hearing before the Stewards that he neither administered nor directed anyone to administer caffeine to the subject horse. Application of Rule 61D-6.002, Florida Administrative Code, makes Hennessey strictly liable for impermissible drugs found in horses he enters to race at pari-mutuel wagering facilities in the State of Florida. No evidence of willful administration of caffeine by Hennessey is known to exist. Warren is the holder of an unrestricted U-1 Professional Pari-mutuel License, License Number 0024037-1081, authorizing him to train horses. The license was issued to Warren by the Department pursuant to the provisions of Section 550.105, Florida Statutes. Warren was the trainer of record of a thoroughbred horse named "The Issue is Power," which won the fifth race conducted on November 12, 1999, in Miami, Florida, at the Tropical Park at Calder Race Meeting. After the race concluded, a urine sample, sample number 540322, was taken from "The Issue is Power" at the detention facility operated by the Department. Sample number 540322 was tested by the University of Florida Racing Laboratory, and that sample was found to contain benzoylecgonine, which is a metabolite of cocaine. The estimated concentration of benzoylecgonine was 50 to 54 nanograms per milliliter. Testing of sample number 540322 did not show the presence of egonine methyl ester, which is another metabolite of cocaine. Warren denies that he knowingly or intentionally administered cocaine to the horse "The Issue is Power" at any time. Application of Rule 61D-6.002, Florida Administrative Code, makes Warren strictly liable for impermissible drugs found in horses he enters at pari-mutuel wagering facilities in the State of Florida. No evidence of willful administration of cocaine by Warren is known to exist. Ms. Gangemi, is the holder of an unrestricted U-1 Professional Pari-mutuel License, License Number 0257328-1081, authorizing her to train horses. The license was issued to Ms. Gangemi, by the Department pursuant to the provisions of Section 550.105, Florida Statutes. Ms. Gangemi was the trainer of record of a thoroughbred horse named "Quanchotaug," which finished third in the ninth race race of the matinee performance conducted on July 11, 2000, in Miami, Florida, at Calder Race Course, Inc. After the race concluded a urine sample, sample number 658542, was taken from "Quanchotaug" at the detention facility operated by the Department. Sample number 658542 was tested by the University of Florida Racing Laboratory, and that sample was found to contain benzoylecgonine. The estimated concentration of benzoylecgonine was 10 nanograms per milliliter. A split sample analysis performed by the Center For Tox Services, an independent laboratory in Tempe, Arizona, confirmed the presence of benzoylecgonine in sample number 658542. The estimated concentration of benzoylecgonine was 2 nanograms per milliliter. Application of Rule 61D-6.002, Florida Administrative Code, makes Ms. Gangemi strictly liable for impermissible drugs found in horses she enters to race at pari-mutuel wagering facilities in the State of Florida. No evidence of willful administration of cocaine by Ms. Gangemi is known to exist. Testing of sample 658542 did not show the presence of egonine methyl ester. The administration or exposure of cocaine directly into the post-race urine sample of a horse could result in the presence of the metabolite benzoylecgonine. Pompano Park is authorized to conduct pari-mutuel wagering upon harness horse racing pursuant to a permit issued to it by the Department under Section 550.054, Florida Statutes. Tropical Park is authorized to conduct pari-mutuel wagering upon thoroughbred horse racing pursuant to a permit issued to it by the Department under Section 550.054, Florida Statutes. Calder Race Course is authorized to conduct pari-mutuel wagering upon thoroughbred horse racing pursuant to a permit issued to it by the Department pursuant to Section 550.054, Florida Statutes. Horse racing, at its best, is difficult to control, and would be practically impossible to regulate if every governing rule and regulation were made dependent for validity upon the knowledge or motives of the person charged with a violation. It would be almost impossible to prove guilty knowledge or intent in cases involving a reported positive test for an impermissible substance. Every consideration surrounding the business of operating a race track, and the racing of horses thereon, seems to call for firm and rigid rules placing responsibility and imposing penalties for their violation. The Department currently has six investigators assigned to cover 35 permitholders. The investigators are well known around the various race tracks they cover, which makes catching possible drug violations in the act almost impossible. The Department's investigators are generally notified of a drug confirmation about ten days after a race has been run. Given that there are so few investigators covering 35 tracks and the reports are received ten days after a race, it would be very difficult to successfully determine who administered a prohibited substance to a horse. The trainer is singularly the best individual to hold accountable for the condition of a horse. The trainer is either going to be with the horse at all times or one of his or her employees or contractors is going to be with the horse at all times, whether the horse is racing on an individual day or is merely stabled at the track. A trainer of racing horses is responsible for the animals' athletic conditioning. A trainer is also responsible for providing for the regular care of the horses he trains, including feeding and seeing to the medical needs of the horses. All persons who handle an animal prior to the running of a race are either employees of the track or Department or are employed by or in a professional relationship with the trainer. At no time prior to a race is a trainer or his employer prohibited from seeing to the security of the horse in the paddock. While there are other persons who come in contact with the horse prior to a race, the trainer due to his responsibility for the care and supervision of the animal stands in the best overall position to prevent improper medication of the horse. There is no practical alternative to holding the trainer of record responsible for the condition of the animals he enters to race. The Department's authority to require the return of a purse is insufficient to deter wrongdoers from attempting to affect the outcome of a race. The integrity of the pari-mutuel industry would suffer from the Department's inability to enforce statutes relating to the drugging of racing animals.
Findings Of Fact The Findings of Fact contained in the Recommended Order are hereby adopted as the findings of the Division.
Conclusions The State of Florida, Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering (Division) hereby enters this Final Order for the above styled matter. On January 4, 2001, the Division received a Recommended Order from the Honorable Susan B. Kirkland, Administrative Law Judge of the Division of Administrative Hearings. The Recommended Order is attached to this Final Order and incorporated by reference herein. This Final Order is being executed by the Secretary of the Department of Business and Professional Regulation because Dr. Paul F. Kirsch, Director of the Division of Pari-Mutuel Wagering testified at the formal hearing which was consolidated with the rule challenge styled Daniel G. Hennessey, Fred G. Warren and Celestina M. Gangemi vs. Division, DOAH Case Nos. 99-5254RX, 00-2821RX and 00-3809RX.
Appeal For This Case Unless expressly waived, any party substantially affected by this final order may seek judicial review by filing an original Notice of Appeal with the Clerk of the Department of Business and Professional Regulation, and a copy of the notice, accompanied by the filing fees prescribed by law, with the clerk of the appropnate District Court of Appeal within thirty (30) days rendition of this order, in accordance with Rule 9.110, Fla. R. App. P., and section 120.68, Florida Statutes. CERTIFICATE OF SERVICE Thereby certify that this Notice has been provided by facsimile transmission to Cynthia S. Tunnicliff and Martha J Edenfield, Attorneys for Respondent, by U.S. Certified Mail at Post Office Box 10095, Tallahassee, Florida 32302-2095 and David S. Romanik, Attorney for Respondent, by U.S. Certified Mail to Post Office Box 310, Hallandale, Florida 33008-0310 this 4 day of, pk 2001. Mary Polomo, Division Clerk Copies furnished to: Bureau of Operations Licensing Section Bureau of Investigations Joseph M. Helton, Jr., Assistant General Counsel General Manager, Calder Chief Inspector, Calder Stewards, Calder Director of Security, Calder Racing Form, Calder
The Issue Whether Respondent committed the offenses alleged in the Amended Administrative Complaint and the penalties, if any, that should be imposed.
Findings Of Fact Respondent is a veterinarian licensed in the State of Florida. On October 8, 1990, Respondent received pari-mutuel wagering occupational license number 0364610-1046 from the Petitioner. Respondent held this pari-mutuel wagering occupational license at all times pertinent to this proceeding. Petitioner is the State agency responsible for the regulation of the horse racing industry in the State of Florida. At all times pertinent to this proceeding, Respondent worked as a racetrack veterinarian at Pompano Harness Track (Pompano Track) in Pompano Beach, Florida. James Gabriel is a sixteen year veteran of the Fort Lauderdale, Florida, Police Department. During the latter part of 1992, Officer Gabriel began an undercover investigation at Pompano Track as part of his duties with the Metropolitan Organized Crime Intelligence Unit. Officer Gabriel posed as a convicted felon who was the owner of the horse Yankee Roughneck. Horse owner Herman Berger registered Yankee Roughneck in his (Berger's) name since as a convicted felon, Officer Gabriel's undercover persona would not be allowed to register as the true owner. Mr. Berger was a target of Officer Gabriel's undercover investigation and did not know that Officer Gabriel was in fact a police officer. Officer Gabriel and Mr. Berger were in contact with one another on almost a daily basis between November 1992 and May 1993. Mr. Berger owned the horse You've Got The Time. Officer Gabriel's undercover investigation lasted approximately one year and was electronically monitored so that conversations in which Officer Gabriel was a part were tape recorded without the knowledge of the other participants in the conversation. At all times pertinent to this proceeding, Yankee Roughneck and You've Got The Time were standard bred horses that raced at Pompano Track. On the morning of May 24, 1993, Officer Gabriel met with Mr. Berger and discussed having Respondent give Yankee Roughneck a substance to make him run faster. Mr. Berger referred to the substance to be given to Yankee Roughneck as being a "malt". A malt is also known as a "milkshake" and as an "ionic boost". Later that same day Officer Gabriel came into contact with Respondent when Respondent arrived at Pompano Track at the stable of Charlie Giamanco, the trainer of Yankee Roughneck. Respondent was at the stable to treat Yankee Roughneck for an injury that occurred when the rail of a jog cart broke and a splinter stabbed Yankee Roughneck in the shoulder. Officer Gabriel was in the presence of Mr. Berger and Mr. Giamanco when Respondent arrived at the stable. Respondent did not know Officer Gabriel, but he knew that Officer Gabriel was a colleague of Mr. Berger. Officer Gabriel engaged in a conversation with Respondent which was electronically monitored by equipment in good working order. The following conversation among Respondent (P.P.), Officer Gabriel (J.G.), Mr. Berger (H.B.), and Mr. Giamanco (C.G.) was taped. This conversation pertains to racing Yankee Roughneck and ways to enhance the horse's performance. P.P.: If the horse the ah, had he been milkshaked before did he race well when he was milkshaked? Not every horse races well when they get bagged. (Unintelligible.) H.B.: He came, he raced but not the way he supposed (sic) to. P.P.: I'll speak with Charlie tomorrow morning. Well the only thing to do is to try it one start. H.B.: Yes. P.P.: Not (sic) that expensive to do. (Unintelligible.) H.B.: Exactly. P.P.: If the horse improves. H.B.: Alright (sic). J.G.: How long does it take before we do something like that for (unintelligible). P.P.: Two and a half hours before the race. Thereafter, Respondent made the following statement: P.P.: OK, the same thing that we used to, when we used to pass the tube, you know, but now, we can't pass the tube. What we're doing is giving it orally. Mix the stuff up put it in their dose syringe. Put it on the back of their tongue a hundred and eighty c.c. and (unintelligible) even in the states where they have the black box, it won't test positive, pass the stomach tube and dump that whole big load in him shows on the box. Subsequently in the conversation, the following dialogue occurred: H.B.: And we going (sic) to do for Yankee Roughneck (unintelligible). J.G.: Well, what day do we want to do that? When we find out when he's, I think he's in Thursday. P.P.: Okay. H.B.: We'll find out today. P.P.: (Unintelligible) check with Charlie and the day he gets in. H.B.: Yeah. The milkshake referred to by Respondent and by the other participants in this conversation is a liquid concoction that includes a mixture of sodium bicarbonate. As described by Respondent, the mixture would thereafter be given the horse by dose syringe. This mixture is given to a racehorse in the hopes of enhancing the horse's performance during the race. In the amounts discussed by Respondent, sodium bicarbonate meets the definition of a "medicine" within the meaning of Section 550.235(2), and Section 550.2415(1)(a) and (8), Florida Statutes. The evidence established that sodium bicarbonate raises the ph level in the horse beyond the normal physiological range and can be expected to delay muscle fatigue in a horse by buffering the buildup of lactic acid in the muscle during periods of exercise. The horse can be expected to run faster because the onset of fatigue will be delayed. An improvement of one to two seconds can be expected in the horse's racing time, which equates to approximately five lengths in a harness race. Sodium bicarbonate is also administered to racehorses to prevent a condition formally known as exertional rhabdomyolisis and informally referred to as "tying up". The onetime administration of sodium bicarbonate shortly before race time under the facts of this case was to enhance the horse's performance and not to prevent tying up. If the prevention of tying up had been the goal, small amounts of sodium bicarbonate would had been added to the horse's food over an extended period of time. The Respondent's reference to the "black box" in the taped conversation is to a device employed by many race tracks to test whether a horse has been "milkshaked" or otherwise improperly medicated. Pompano Track did not use a blackbox. The Respondent's reference to "tubing" a horse is a prohibited practice whereby a stomach tube is passed through the horse's mouth and into the stomach. The "milkshake" is thereby pumped directly into the horse's stomach. The tubing of a race horses is a practice prohibited by rule adopted by Petitioner. The tubing rule was adopted by Petitioner in an effort to stop the practice of tubing horses by grooms or trainers who have inadequate training and to prevent the practice of milkshaking horses. Typically, more of the concoction would be administered by tubing than by using the dose syringe. The evidence established that the amount of sodium bicarbonate discussed by Respondent is sufficient to enhance the horse's performance. Administering the "milkshake" by syringe, as Respondent said he would do, would not violate Petitioner's rule against tubing a horse. Administering the "milkshake" by syringe, as Respondent said he would do, would constitute the administration of a medication within twenty-four hours of a race in violation of Section 550.2415(8), Florida Statutes. The Thursday referred to in the conversation is May 27, 1993, the day that Yankee Roughneck was next scheduled to race. On May 27, 1993, Dr. Michael Carinda, a veterinarian who was in practice with Respondent, brought a "milkshake" to Yankee Roughneck's stable. A groom thereafter administered the milkshake to Yankee Roughneck in the manner described by Respondent. Yankee Roughneck placed third in his race, but he ran slightly slower than he had in his previous race. The evidence did not establish that Respondent agreed to "milkshake" the horse You've Got The Time within twenty-four hours of a race.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order that adopts the findings of fact and conclusions of law contained herein. IT IS FURTHER RECOMMENDED that Petitioner's Final Order find Respondent not guilty of the offenses alleged in Counts One, Four, Five, and Six of the Amended Administrative Complaint. IT IS FURTHER RECOMMENDED that Petitioner's Final Order find Respondent guilty of the offenses alleged in Counts Two and Three, suspend Respondent's occupational license for a period of one year, and assess against Respondent an administrative fine in the amount of $2,000. DONE AND ENTERED this 12th day of December, 1994, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of December 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-5993 The following rulings are made on the proposed findings of fact submitted by the Petitioner. The proposed findings of fact in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 13, 20, 21, 26, and 30 are adopted in material part by the Recommended Order. The proposed findings of fact in paragraph 11 are adopted in part by the Recommended Order and are rejected in part as being unnecessary to the conclusions reached. The proposed findings of fact in paragraphs 14, 15, 16, 17, 18, 19, 22, 23, 24, 25, 27, 28, 29, 31, 32, 33, 34, 35, 37, 38, 39, 41, 42, 43, 44, 45, and 46 are rejected as being subordinate to the findings made. The proposed findings of fact in paragraph 36 are rejected as being unnecessary to the conclusions reached. The proposed findings of fact in paragraph 40 are adopted in part by the Recommended Order, but are rejected in part as being argument that is subordinate to the findings made. The following rulings are made on the proposed findings of fact submitted by the Respondent. The proposed findings of fact in paragraphs 1, 2, 3, 4, 11, and 15 are adopted in material part by the Recommended Order. The proposed findings of fact in paragraphs 5 and 8 are rejected as being unnecessary to the conclusions reached. The composition of the concoction referred to as a "milkshake" was described in the Amended Administrative Complaint and was established at the formal hearing. The proposed findings of fact in paragraph 6 are rejected as being contrary to the findings made. The proposed findings of fact in paragraph 7 are subordinate to the findings made. The proposed findings of fact in paragraphs 8, 12, and 13 are rejected as being argument. The proposed findings of fact in paragraphs 9 and 10 are rejected as being unnecessary to the conclusions reached or as being contrary to the findings made. The proposed findings of fact in paragraphs 14 and 16 are rejected as being argument that is contrary to the conclusions reached or to the findings made. COPIES FURNISHED: Richard A. Grumberg, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32308 Karen C. Amlong, Esquire William Amlong, Esquire Amlong and Amlong 500 Northeast 4th Street, 2nd Floor Fort Lauderdale, Florida 33301 Dr. Paul R. Plante 1450 Southwest Third Street Pompano Beach, Florida 33069 William E. Tabor, Director Division of Pari-Mutuel Wagering 1940 North Monroe Street Tallahassee, Florida 32399-0792 Jack McRay, Acting General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The first issue is whether the Greyhound Veterinary Assistant Procedures Manual published by the Division of Pari- Mutuel Wagering ("Division Manual") constitutes an unadopted rule in violation of section 120.54(1)(a), Florida Statutes (2014).1/ Petitioner further contends that the agency materially failed to follow applicable rulemaking procedures with respect to the Division Manual; that it is vague, fails to establish adequate standards for agency decisions, invests unbridled discretion in the agency; and is arbitrary and capricious, in violation of sections 120.52(8)(a), (d), and (e). A second issue is whether Florida Administrative Code Rule 61D-6.002 is an invalid exercise of delegated authority because it enlarges, modifies, or contravenes the provisions of section 550.0251(3), Florida Statutes; is vague, fails to establish adequate standards for agency decision, or vests unbridled discretion in the agency; or is arbitrary and capricious, in violation of sections 120.52(8)(c), (d), and (e). Petitioner further contends that rule 61D-6.002 violates Petitioner's due process rights and is therefore unconstitutional.
Findings Of Fact Petitioner, Mr. Robert Dawson, is the holder of an Unrestricted U-1 Professional Pari-Mutuel License authorizing him to train racing greyhounds pursuant to section 550.105, Florida Statutes. Mr. Dawson is subject to chapter 550 and the administrative rules promulgated thereunder in Florida Administrative Code Chapter 61D. Respondent, the Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering ("Division"), is a state agency delegated the responsibility for the implementation and enforcement of Florida's pari-mutuel laws under chapter 550, including the licensing and regulation of all pari-mutuel activities in Florida. In the past, the Division used to take urine samples from dogs after a race, usually from the winner. The dogs to be tested would be announced, and the owner or his representative could then witness the sample collection and sign indicating that he had witnessed the sample being taken. In late 2008, the Division changed the procedures that it follows and began to take pre-race samples. Mr. Jorge Callejas testified that many dogs tend to urinate prior to the race, and it was noted that, after a race, they were tired and not as interested in urinating. The Division had monitored statistics and found that with post-race collections, the number of samples that did not have a sufficient quantity for testing was very high. After switching to pre-race testing, the number of untestable samples went down significantly. At that time, they began using an earlier version of the Division Manual, which sets forth procedures to be followed by veterinary assistants employed by the Division working with the racing greyhound program. The Division now conducts random pre-race urine sample collections at all of its licensed greyhound race tracks. The Division uses the Division Manual at all greyhound racing facilities in the state of Florida. The Division provides the Division Manual to its veterinary technicians working at the licensed greyhound race tracks. The Division Manual was last amended on March 31, 2010. The Division Manual is properly attributable to the Division as an institution. The Division filed two administrative complaints against Mr. Dawson for violations of section 550.2415, which are pending before DOAH with case numbers 14-4450PL and 14-4719PL. Trainers of dogs with a positive urine test can face severe sanctions. As a greyhound trainer, Mr. Dawson's responsibilities include feeding the dogs, examining them for injuries, keeping them at the proper weight, preparing them for weigh-in before each race, and keeping them healthy. Occasionally, he also personally takes the dogs to the track. On a race day, the dogs are typically walked, cleaned up by a kennel helper, weighed-in, and then given to the "leadouts." Leadouts are not employed by the individual kennels, but are employed by the track. The leadouts place the dogs in the ginny pit area, sometimes called the lock-up, an area where the dogs stay until their scheduled race. Trainers and kennel helpers are not allowed in the ginny pit area. Trainers and helpers therefore have no access to their dogs for an extended period of time until the race begins and have no control over the employees of the track (leadouts and kennel master) who do have access to the dogs during that time. Pre-race urine specimens are randomly taken from dogs in an outdoor, fenced area adjacent to the ginny pit building by veterinary assistants employed by the Division. This area is open to view by the public, including trainers or their helpers, but only track employees and Division personnel are allowed access to the area. The area where trainers have to be to pick up their dogs is on the opposite side of the building, and from this location, the view of the open area where samples are taken is blocked by the building. Trainers and helpers are routinely occupied with their other dogs and do not have time to watch the pre-race sample collection, especially since they do not know if one of their dogs will be sampled or not. The Division does not individually notify each trainer of record or kennel worker for racing animals when random pre- race urine collection will occur. Trainers and kennel workers are not advised that their greyhounds are going to be tested on a particular day. The Palm Beach Kennel Club does not have video cameras in place that would allow trainers or their helpers to view the dogs while they are in the ginny pit area. Mr. Arthur Agganis, as president of the Palm Beach Greyhound Association, petitioned the general manager to put in some cameras, at the association's expense, but no cameras have been installed. There is a camera in the open area where samples are collected, but trainers and helpers cannot view the feed from this camera. In horseracing, horse trainers are not prohibited from physically accessing their horses prior to the start of each horse's race. As the southern regional manager of greyhound tracks, Mr. Callejas visits the tracks under his responsibility and ensures that each track is following the Division Manual's sampling and testing procedures, including the chain-of-custody procedures. Ms. Jill Blackman testified that the Division Manual was a guideline used for training veterinary assistants in the field. Section 3 of the Division Manual ("Section 3") consists of nine subsections: 3.1 Greyhound Sampling Priority; 3.2 The Collection Process; 3.3 Meeting and Identifying the Greyhound; 3.4 Collecting the Specimen; 3.5 Sealing the Sample; 3.6 Completing the Required Forms; 3.7 Storing the Sample; 3.8 Preparing Samples for Shipment; and 3.9 Shipment of Samples. After the veterinary assistant identifies the dog and collects the sample, the sample is sealed in the cup with evidence tape, labeled, and taken to a freezer in the veterinary assistant's office, where it is locked up. Section 3 does not require the Division to advise trainers of when urine sample collection occurs. Section 3 does not require the Division to ensure that the trainer witness the urine sample collection process or to ensure that the Division obtain the trainer's signature on the specimen card. The Division Manual states on page six that one of the primary duties of the veterinary assistant is to "study and put into practice the procedures outlined in this manual." It goes on to emphasize the importance that all those collecting urine samples understand the proper procedures, and "follow those procedures EACH AND EVERY TIME." Section 3 states at page ten, "Those collecting samples must follow strict chain-of-custody procedures in order to stand as credible evidence in a judicial proceeding." It then goes on to prescribe a "strict sequence of events" that must be followed to ensure that samples are properly collected, sealed, and secured to avoid tampering or alteration. It sets forth procedures to correctly identify a greyhound by the numbers tattooed on its ear, prepare required forms, store collected samples, prepare them for shipment, and maintain the security of the backside areas. Division employees do not have discretion not to follow the Division Manual; its provisions are mandatory and enforced by the Division. The integrity of greyhound racing in Florida is important to citizens betting on the outcome of races and to the dog owners, trainers, and other employees who earn their livelihood in the industry. The procedures followed to collect samples and otherwise ensure the integrity of the sport are important to dog trainers and to the public. A notice of rule development for existing rule 61D- 6.005, entitled Procedures for Sampling of Racing Animals, has been published. Mr. Dawson, as a dog trainer subject to possible discipline under the "absolute insurer" rule, 61D-6.005, is substantially affected by the sample collection and testing procedures of Section 3. He has alleged a real and sufficiently immediate injury in fact. Chapter 550 contains procedures such as "split sampling" to protect trainers and ensure integrity of the testing process, and Mr. Dawson comes within the zone of interest of chapter 550. In his petition, Mr. Dawson sufficiently alleged that Section 3 of the Division Manual was an unadopted rule and attached a copy of it to his petition. Section 3 constitutes a rule within the definition of section 120.52(16). Section 3, or a substantially similar statement reflecting the Division's sample collection process for racing greyhounds, has not been adopted as a rule under chapter 120. It is practicable and feasible to adopt Section 3 as a rule. Rule 61D-6.005 is uniform in its application and effect. The rule is not vague, does not fail to establish adequate standards for Division decisions, or vest unbridled discretion in the Division. The rule is not arbitrary or capricious.
The Issue The issues are whether Respondent violated Section 550.2415(1)(a), Florida Statutes, by racing an animal that had Benzoylecgonine, a metabolite of Cocaine, in its body, and if so, what penalty should be imposed.
Findings Of Fact Petitioner is the state agency charged with regulating pari-mutuel wagering. At all times material to this proceeding, Respondent held a pari-mutuel wagering occupational license. His current license, No. 20713-1021, is effective until June 30, 2003. Orange Park Kennel Club is located in Duval County, Florida. Petitioner has authorized Orange Park Kennel Club to conduct greyhound racing and pari-mutuel wagering. At all times material to this proceeding, Respondent was the trainer of record for a racing greyhound named "WP's Wrangler." On Wednesday, March 13, 2002, Respondent entered "WP's Wrangler" in the fourth race of the matinee performance at Orange Park Kennel Club. "WP's Wrangler" finished fifth in that race. Immediately after the race, one of Petitioner's employees randomly selected "WP's Wrangler" for a urine test. The urine sample No. 847026, was collected and processed in accordance with established procedures. The urine sample was then sent to the University of Florida Racing Laboratory for analysis. When the laboratory received sample No. 847026, the laboratory staff assigned it a new number, laboratory No. 41734K. The laboratory staff had no information regarding the identity of the trainer or animal from which the sample was collected. Information identifying the trainer and the animal on Petitioner's DBPR Form 503, which is a log of samples collected and shipped to the laboratory, is redacted from the laboratory copy to protect the integrity of the testing process. The University of Florida Racing Laboratory tested the urine sample. Using gas chromatography/mass spectrometry, the laboratory determined that sample No. 847026/laboratory No. 41734K contained Benzoylecgonine, a metabolite of Cocaine. Cocaine is a topical anesthetic and a Class I drug under the Uniform Classification Guidelines for Foreign Substances, as promulgated by the Association of Racing Commissioners International. In a report dated April 12, 2002, the laboratory set forth its finding relative to sample No. 847026. Using the sample card created at the time that the urine sample was collected from "WP's Wrangler," Petitioner identified Respondent as trainer of record for "WP's Wrangler" on March 13, 2002. Cocaine or any derivative thereof is not a permissible substance to be carried in the body of a racing animal like "WP's Wrangler."
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED: That Petitioner enter a final order suspending Respondent's license for ten (10) days and imposing a $500 fine. DONE AND ENTERED this 9th day of January, 2003, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of January, 2003. COPIES FURNISHED: Joseph M. Helton, Jr., Esquire Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-2202 Mark L. Smith 6043 Park Street Jacksonville, Florida 32205 David J. Roberts, Director Division of Pari-Mutuel Wagering Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-2202 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202
The Issue Whether Jefferson County Kennel Club, Inc.’s, pari-mutuel wagering and operating license should be disciplined, and if so, the penalty that should be imposed.
Findings Of Fact JCKC holds a pari-mutuel wagering license, number 0000146-1000, and a pari-mutuel operating dates license numbered 0000146-1001. Under those licenses, Respondent operates a dog track and poker room at its race track facility in Jefferson County, Florida. On certain dates, Respondent offers matinee and evening dog races. For each race, Respondent is required to have a licensed veterinarian on the premises before, during, and after the race. The purpose of the veterinarian is to ensure the racing dogs are healthy and fit enough to race and to provide care for any racing dog injured during a race. In general, the veterinarian examines or observes all dogs during the dogs’ weigh-in and after the dog is placed in the lock-out kennel before and after a race. The lock-out kennel or Jenny Pit is a holding area where each dog is held in a separate cage. Access to the area is limited. On September 17 and 19, 2005, February 6, 18, 24, 25, March 4, 10, 11, 18, 30, and April 1, 8, 15, and 22, 2006, Respondent conducted races at its track. During 2005 and 2006, Dr. David Jordan, now deceased, was the licensed veterinarian at Respondent’s track. At the time, Dr. Jordan was dying from cancer, and with little notice, sometimes could not be present on race days due to his illness. On those days, and because of the limited number of qualified veterinarians in the Jefferson County area, attempts to locate another veterinarian were not successful. As a consequence, no track veterinarian was present for the matinee races held on September 17, 2005. Similarly, no track veterinarian was present for the evening races held on September 19, 2005, February 6, 2006, February 18, 2006, February 24, 2006, February 25, 2006, March 4, 2006, March 10, 2006, March 11, 2006, March 18, 2006, April 1, 2006, April 8, 2006, April 15, 2006, and April 22, 2006. Additionally, no track veterinarian was present for the weighing in before the greyhounds entered the lock-out kennel prior to the evening races held on March 30, 2006. However, a veterinarian was present to observe the race dogs during and after the evening races on March 30, 2006. Respondent does not dispute that a veterinarian was not present on the days listed above and does not dispute that such failure was a violation of the Division’s rules. Respondent does dispute the maximum amount of the fine sought by Petitioner. Clearly, Respondent’s license is subject to discipline under Chapter 550, Florida Statutes (2008). The law in effect from September 2005 though April 2006 allowed JCKC to operate its cardroom only on the days that it was conducting live greyhound racing. The revenues from JCKC’s cardroom operations for the dates at issue are as follows: DATE GROSS RECEIPTS TOURNAMENT GROSS RECEIPTS TOTAL GROSS RECEIPTS TAX DUE STATE 09/17/05 $4,558.00 $1,620.00 $6,178.00 $617.80 11/19/05 4,220.00 0.00 4,420.00 422.00 02/04/06 6,852.00 0.00 6,852.00 685.20 02/18/06 5,452.00 0.00 5,452.00 545.20 02/24/06 3,862.00 0.00 3,862.00 386.20 02/25/06 5,154.00 0.00 5,154.00 515.40 03/04/06 5,404.00 0.00 5,404.00 540.40 03/10/06 2,971.00 0.00 2,971.00 297.10 03/11/06 3,949.00 0.00 3,949.00 394.90 03/18/06 4,254.00 918.00 5,172.00 517.20 03/30/06 898.00 1,600.00 2,498.00 249.80 04/01/06 3,494.00 1,224.00 4,718.00 471.80 04/08/06 3,782.00 1,440.00 5,222.00 522.20 04/15/06 4,204.00 1,386.00 5,590.00 559.00 04/22/06 3,235.00 1,440.00 4,675.00 467.50 TOTALS $62,289.00 $9,628.00 $71,917.00 $7,191.70 Even with this revenue, the track operates at a loss. Moreover, this is the only disciplinary action against Respondent. On the other hand, Respondent did have multiple times when a veterinarian was not present to observe the dogs at the track. However, the veterinarian’s absences were unpredictable and not within Respondent’s control. Given these factors, it is unreasonable to fine Respondent the maximum amount accorded under Chapter 550, Florida Statutes (2008). In this case, a reasonable fine would be $500 for each day the track veterinarian was not present as required.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order finding Respondent guilty of violating Florida Administrative Code Rule 61D-6.009(2), and imposing a $7500 fine. DONE AND ENTERED this 5th day of June, 2009, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of June, 2009. COPIES FURNISHED: Charles T. “Chip” Collette, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Steve Andris Post Office Box 400 Monticello, Florida 32345 Tim Vaccaro, Director Division of Pari-Mutuel Wagering Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Ned Luczynski, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether Petitioners are entitled to exceed the twenty percent cap on simulcasts.
Findings Of Fact The Department is the state agency charged with the responsibility of regulating pari-mutuel facilities within the State of Florida. The Department also regulates, pursuant to Chapter 550, Florida Statutes, simulcast broadcasts of pari-mutuel events which are imported into the state at pari-mutuel facilities located within Florida. Such broadcasts are permissible and are subject to statutory taxes depending on the type of event and the applicable percentages of tax on the wagers received. Such amounts may vary depending on facility and type of event. Thoroughbred racing permit holders may simulcast thoroughbred races conducted at out-of-state thoroughbred tracks. Similarly, a harness racing facility may simulcast harness races conducted at out-of-state harness tracks. Theoretically, greyhound clubs may simulcast greyhound races conducted out-of- state and jai alai may simulcast jai alai matches from out-of-state. In each instance, the Florida pari-mutuel permit holder may send the simulcast signal to any pari-mutuel permit holder within the state. Historically, the number of the races which could be imported from out- of-state to be broadcast at a Florida permit holder location was capped at twenty percent. A permit holder could exceed this limitation with approval from the Department when it was in the best interests of racing and would promote live racing and purse distribution. Petitioner, Calder Race Course, Inc. (Calder), is a thoroughbred racing pari-mutuel permit holder fully authorized by the Department to conduct live races during its racing meet. Its racing facility is located in Miami, Florida. In June, 1995, Calder first requested permission to conduct full card simulcasting pursuant to Section 550.3551(6), Florida Statutes. That request, covering racing dates remaining for the 1995-1996 racing season, was denied. Moreover, Calder's request for an administrative hearing to challenge the denial was also denied. Calder's successful appeal to the district court of appeal ultimately resulted in this matter, DOAH case no. 95-6180, being referred to the Division of Administrative Hearings for formal proceedings. In December, 1995, Calder again filed an application to exceed the twenty percent full card simulcast limitation for its 1996-1997 racing season. Again, the Department denied the request. Having the benefit of the appellate decision, the Department referred the matter, DOAH case no. 96-1348, to the Division of Administrative Hearings for formal proceedings. Petitioner, Tampa Bay Downs, Inc. (TBD), is a thoroughbred racing pari-mutuel permit holder fully authorized to conduct live races during its racing season. Its racing facility is located in Oldsmar, Florida. In September, 1995 and January, 1996, TBD applied for full card simulcasting for its racing meet. Consistent with its response to Calder's request, the Department denied the TBD applications and referred the matter to the Division of Administrative Hearings for formal proceedings, DOAH case nos. 96-0025 and 96-1351. Petitioner, Tropical Park, Inc. (Tropical), is a thoroughbred racing pari-mutuel permit holder that is fully authorized to conduct live races during its racing season. It shares the Calder facility in Miami but has a different racing meet. Like Calder, Tropical filed for full card simulcasting for its 1996- 1997 racing meet and was denied by the Department. Its petition for formal proceedings has been designated DOAH case no. 96-1349. Petitioner, Gulfstream Park Racing Association, Inc. (Gulfstream) is a thoroughbred racing pari-mutuel permit holder fully authorized to conduct live races during its racing season. Gulfstream is located in Hallandale, Florida. On or about January 3, 1996, Gulfstream filed an application with the Department for authorization to exceed the twenty percent limitation on simulcasts. This application was for the 1996-1997 racing season with a race meet running from January 3, 1997 through March 16, 1997. The Department denied Gulfstream's application. Such denial, DOAH case no. 96-1350, was timely opposed by Gulfstream. Petitioner, PPI, Inc., d/b/a Pompano Park Racing (Pompano), is a harness racing pari-mutuel permit holder that is fully authorized to conduct live harness races during its racing season. Pompano is located in Pompano Beach, Florida. On or about December 20, 1995, Pompano filed an application with the Department for authorization to exceed the twenty percent limitation on simulcasts. This application was for Pompano's 1996-1997 racing season. The Department denied Pompano's application. Such denial, DOAH case no. 96-1392, was timely opposed by Pompano. Petitioner, the Florida Thoroughbred Breeders' Association, d/b/a the Florida Thoroughbred Breeders' and Owners' Association (Breeders), is a nonprofit corporation with its principal place of business located in Ocala, Florida. This Petitioner represents Florida owners and breeders of thoroughbred race horses. The Breeders maintain that denying simulcasting in excess of the twenty percent limitation adversely impacts the amounts which must be paid as the breeder's percentage of the wagers made at pari-mutuel facilities. Thus, Florida breeders lose income which simulcasting in excess of the cap would contribute to breeders' awards. The Intervenors are greyhound pari-mutuel permit holders who opposed full card simulcasting in excess of the statutory twenty percent limitation. Such Intervenors did not oppose the importation of the broadcast signals to a specific pari-mutuel location, but opposed its unbridled rebroadcast to pari- mutuel facilities within the state as allowed by law. Before the hearing in this cause was completed and on the last day of the 1996 regular session, the Legislature enacted CS/HB 337. Such bill became law without the Governor's signature and went into effect on July 1, 1996. The new law made numerous amendments to Chapter 550, Florida Statutes. Among the changes was the removal of the twenty percent limitation on simulcast wagering for pari-mutuel permit holders. On May 16, 1996, the Department issued a letter to all pari-mutuel wagering permit holders that provided, in pertinent part: In light of this omnibus legislation which addressed the concerns of the entire pari- mutuel industry including the issues surrounding full-card simulcasting, the Division of Pari-Mutuel Wagering (Division) believes it is in the best interest of Florida racing to immediately allow full- card simulcast wagering until June 30, 1996 pursuant to the Division's discretion set forth in subsection six of Section 550.3551, Florida Statutes. Accordingly, any pari-mutuel wagering permitholder whose annual license currently authorizes them to conduct live performances at any time during the period of May 17, 1996 through June 30, 1996 may receive broadcasts of like-kind events conducted at facilities outside this State at the race- track, dog track, or jai-alai enclosure of the licensee during any live performance authorized by the permitholder's annual license. On June 30, 1996 the privilege granted by this letter terminates; thereby, ending any authorization to exceed the twenty-percent limitation on simulcast wagering for all permitholders within the State. Full-card simulcast wagering authorized and regulated pursuant to the provisions in the Committee Substitute for House Bill 337 becomes effective on July 1, 1996. Thereafter, the Department filed a motion to dismiss Petitioners' requests for formal administrative hearing due to mootness. The Intervenors have supported the Department's motion to dismiss. The Petitioners, with the exception of Gulfstream which wanted the hearing and the administrative process to be completed, filed a motion to abate so that the 1996-1997 racing season may be completed before a determination is made as to the mootness of the issue.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That the Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering, enter a final order approving all full card simulcasting applications for which days remain in the Petitioner's racing meet. All other applications are deemed moot as the racing meets have expired. DONE AND ENTERED this 30th day of October, 1996, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH 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 30th day of October 1996. COPIES FURNISHED: Alexander H. Twedt, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Harry R. Detwiler, Jr., Esquire John M. Alford, Esquire ALFORD & DETWILER 1106-6 A Thomasville Road Tallahassee, Florida 32303 Wilbur E. Brewton, Esquire Lee M. Killinger, Esquire Gray, Harris & Robinson, P.A. 225 South Adams Street, Suite 250 Tallahassee, Florida 32301 (Attorneys for Calder Race Course, Inc. and Tropical Park, Inc.) Howell L. Ferguson, Esquire Cindy L. Bartin, Esquire LANDERS & PARSONS Post Office Box 271 Tallahassee, Florida 32302 (Attorneys for Tampa Bay Downs, Inc.) Gary R. Rutledge, Esquire Harold F.X. Purnell, Esquire Rutledge, Ecenia, Underwood, Purnell & Hoffman, P.A. Post Office Box 551 Tallahassee, Florida 32302 (Attorneys for the Intervenors) David S. Romanik, Esquire ROMANIK, LAVIN, HUSS & PAOLI 1901 Harrison Street Hollywood, Florida 33020 (Attorneys for Gulfstream Park Racing Association, Inc.) Warren H. Husband, Esquire Messer, Caparello, Madsen, Goldman & Metz, P.A. Post Office Box 1876 Tallahassee, Florida 32302-1876 (Attorneys for Florida Thoroughbred Breeders' Association) Alan B. Koslow, Esquire David H. Reimer, Esquire BECKER & POLIAKOFF, P.A. Post Office Box 9057 Fort Lauderdale, Florida 33310-9057 (Attorneys for PPI, Inc.) Lynda L. Goodgame General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Royal H. Logan Acting Director Pari-Mutuel Wagering Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
