The Issue The issue is whether Petitioner's Notice of Intent to Withdraw License should be granted or dismissed.
Findings Of Fact At all material times, Respondent has held The Permit, which authorizes Respondent to conduct summer jai-alai performances in Dade County. In 1980, Respondent converted a greyhound racing permit into the Permit, as authorized by a predecessor to section 550.0745, which is discussed in the Conclusions of Law. Each year, as required by section 550.0115, Respondent has obtained an operating license under the Permit to conduct performances, which it has done at the same location named in the Permit. On December 26, 2016, Respondent filed an application for an operating license for 2017-18. This application sought a license to conduct performances in Dania, which is in Broward County. The new location is less than 35 miles from the Dade County location mentioned in the preceding paragraph. Petitioner's employee assigned to examine applications attached a large post-it note to the portion of the application advising of the change in operating location from Dade to Broward county. The note is still attached to the file, which was presented at the final hearing. The note is impossible to miss. On March 10, 2017, Petitioner granted the operating license, which authorizes Respondent to conduct summer jai-alai performances in Dania for the 2017-18 season. In reliance on the 2017-18 operating license, Respondent has terminated its lease for the Dade County facility and entered into a lease for the Dania facility. Following a complaint from the lessor of Respondent's Dade County location, the Division of Pari-Mutuel Wagering (Division) concluded that it had issued the operating license in error, determined that an operating license for a converted permit must be limited to the county named in the converted permit, and issued the NOI on June 1, 2017. Directed to Respondent, the NOI does not allege that Respondent has violated any statute or rule. Instead, the NOI states only that Petitioner issued the operation license "in error as [Respondent] is not authorized to operate summer jai-alai performances via The Permit outside of Miami-Dade County." The NOI never mentions section 550.475. At one time, Petitioner construed section 550.475, which is discussed below, to allow a holder of a county-specific permit to relocate performances to a facility located within 35 miles from the facility, but in another county, and a circuit court has sustained this construction. In the past, Petitioner issued operating licenses to holders of converted or created permits that authorized performances at the licensed location or a facility leased pursuant to section 550.475. It is unclear, though, when Petitioner changed its position. Division directors changed between the issuance of the 2017-18 operating license and the NOI, and it is unlikely that the former director missed the proposed out-of-county relocation described in the application for the 2017-18 operation license. However, these two facts do not preclude a mistake of law, as Petitioner contends, so that the NOI is not necessarily a statement that represents a change in longstanding policy. The NOI states that the operating license is based on a mistake of law, but Petitioner's proposed recommended order states that the operating license is a mistake of law--the same conclusion that the Administrative Law Judge reaches in the Conclusions of Law.
Recommendation RECOMMENDED that Petitioner enter a final order dismissing the Notice of Intent to Withdraw License. DONE AND ENTERED this 12th day of December, 2017, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE 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 12th day of December, 2017.
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 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).
Findings Of Fact Petitioner is an agency of the State of Florida charged with the duty of regulating, among other things, the harness horse racing industry in the State of Florida. On November 28, 1979, Charles Federman, holder of pari-mutuel trainer's license L-25378, trained and entered the standardbred horse, Hanker Chief, in the ninth race at Pompano Park in Florida, where Tourist Attractions, Inc., is licensed by the Florida Division of Pari-Mutuel Wagering to conduct horse racing. The horse ran in the race and won. Following the race a urine specimen was taken from the horse by Division personnel. Following collection, the sample, was sealed and was placed in a locked refrigerator in the office of the detention barn where the samples are customarily stored until transportation to the Division laboratory. A card bearing number 56969 was filled out, and the top of the card bearing the same number was taped to the sample. The bottom of the card, also bearing the number 56969 was filled out by the collector of the sample to contain information pertinent to where, when, by whom, and from what horse the sample was taken. The sample was picked up at the detention barn by Division personnel and transported to the Division laboratory. The sample was analyzed by personnel at the Division laboratory by means of seven thin layer chromotographies, gas chromotography, and mass spectrometry. These analyses corresponded precisely with analyses by identical tests of a standard derived from Stadol, a drug marketed by Bristol Laboratories whose active ingredient is "butorphanol". Accordingly, it is specifically concluded that the facts of record in this proceeding support the conclusion that the laboratory analyses performed by Division personnel were accurate, and that those analyses establish a positive identification of "butorphanol" to have been contained in the urine specimen taken from Respondent's horse following the ninth race on November 28, 1979. Butorphanol is marketed as a salt, butorphanol tartrate, under the brand name Stadol, by Bristol Laboratories. Butorphanol is a narcotic with potent analgesic properties approximately equivalent to that of morphine, although its exact mechanism is unknown. Butorphanol acts as a "depressant", in that two milligrams depresses respiration to a degree equal to ten milligrams of morphine, but also has "stimulant" effects on the cardiovascular system. Butorphanol is not recommended for humans physically dependent on narcotics because it has a physical dependence liability, although admittedly low. In horses, butorphanol acts as an analgesic and, depending on dosage, it either depresses or stimulates a horse. The drug would be of use in harness racing for its potent pain killing effects if a horse were sore or lame, or for its depressant effects if a horse were high-strung and likely to break its gait. The smallest dosage of Stadol marketed by Bristol Laboratories is a 1 milliliter vial containing 1 milligram of butorphanol. In the smallest administrable injection, butorphanol produces narcotic effects. Respondent was present on November 15, 1979, at a meeting of all drivers held before the start of the meet during which the offense charged occurred. At that meeting, Division personnel announced to all drivers and trainers in attendance that Stadol was a prohibited substance and was not to be used. Drivers are required to attend meetings such as that held on November 15, 1979, meetings under the harness racing Rules. See, Rule 7E-4.21 (8), Florida Administrative Code. Respondent holds a driver's/trainer's license. In addition, notices were posted around the track advising that the use of Stadol was prohibited. In particular, such a notice was posted in the Racing Secretary's office where every horseman must go to eater a horse in a race. On the day of the race in question Respondent allowed a person identified by him as "Dr. Rites" to examine and treat Hanker Chief for a sore leg which had been causing the horse to limp. During the treatment, "Dr. Rites" gave the horse injections, which the Respondent understood to be Lasix and a "pain killer". "Dr. Ritos" was not, at that time, licensed by the Division as a veterinarian as required by Rule 7E-4.31(7), Florida Administrative Code. The parties to this proceeding each submitted proposed findings of fact for consideration by the Hearing Officer. To the extent that those proposed findings of fact have not been included in this order, they have been rejected as being either irrelevant to the issues involved in this proceeding, or as not having been supported by evidence of record.
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
Findings Of Fact At all times pertinent to the allegations contained herein, Respondents held valid Pari-Mutuel Wagering occupational licenses as greyhound judges that had been issued by Petitioner. Respondent, Robert C. Crawford, holds license number 0131528-6035 and was, at all times pertinent hereto, the Presiding Judge at Biscayne Kennel Club. Respondent, Robert E. May, holds license number 0131748-6035 and was, at all times pertinent hereto, the Associate Judge at Biscayne Kennel Club. Biscayne Kennel Club is a pari-mutuel facility located in Dade County, Florida, that is licensed by Petitioner. Petitioner has duly enacted a rule 1/ which provides that three judges have general supervisory authority and responsibility over all facets directly involved in the running of pari-mutuel races, including other race officials. Two of these judges, the "presiding judge" and the "associate judge" are so designated by the pari-mutuel facility. The third judge, referred to as the "division judge", is designated by the Petitioner. At all times pertinent to these proceedings, the three judges, acting as a collegial body, had the responsibility and the authority to supervise the Racing Secretary, the Paddock Judge, the Chart Writer, and all other racing officials at Biscayne Kennel Club. During the evening performance of April 30, 1991, Biscayne Kennel Club conducted 13 separate greyhound races upon which wagering was permitted. For the evening performance of April 30, 1991, Respondent Crawford and Respondent May were serving at Biscayne Kennel Club in their official capacities as Presiding Judge and Associate Judge, respectively. At the times pertinent hereto, including the evening performance of April 30, 1991, Douglas D. Culpepper was the Division Judge at Biscayne Kennel Club. The 13th race was conducted without apparent incident, the three judges agreed on the order of finish, and the official results were posted as agreed by the three judges. The official results reflected that the greyhound wearing blanket number 8 finished first, the greyhound wearing blanket number 5 finished second, the greyhound wearing blanket number 6 finished third, and the greyhound wearing blanket number 4 finished fourth. The greyhound wearing blanket number 7 was officially charted as having finished eighth. The 13th race on April 30, 1991, concluded at approximately 11:12 P.M. and was the last race of the evening. At approximately 11:25 P.M., Norman T. Campbell, the general manager of Biscayne Kennel Club, telephoned Respondent Crawford and asked that Respondent Crawford, Respondent May, and Mr. Culpepper meet him in his office. This request from Mr. Campbell was in response to a report he had received that three greyhounds had been mis-identified when the greyhounds were blanketed under the supervision of the Paddock Judge immediately prior to the running of the 13th race. The three greyhounds that had been reportedly mis-identified were: NY DAMASCUS, STRIDDEN RITE, and MPS SEBASTION. The following trainers attended the meeting in Mr. Campbell's office that followed the 13th race: Maggie Spears, the trainer of STRIDDEN RITE; Joel Fries, the trainer of NY DAMASCUS; and Jeanne Ertl, the trainer of MPS SEBASTION. These three trainers were in agreement that their three greyhounds had been mis-identified. These three trainers agreed that the following errors occurred: (1) NY DAMASCUS was assigned the fifth post, but was wearing blanket number 7; (2) STRIDDEN RITE was assigned the sixth post, but was wearing blanket number 5; and (3) MPS SEBASTION was assigned the seventh post, but was wearing blanket number 6. These three trainers agreed that the official results were in error as follows: (1) NY DAMASCUS officially finished second, but he actually finished eighth, twenty lengths off the pace; (2) STRIDDEN RITE officially finished third, but he actually finished second by a nose; and (3) MPS SEBASTION officially finished eighth, but he actually finished third. The three trainers were in agreement that the prize money going to the trainer/owner of the greyhound should be redistributed to reflect the actual finish of the race. Instead of second place money, the trainer of NY DAMASCUS agreed to take nothing. Instead of third place money, the trainer of STRIDDEN RITE received second place money. Instead of no money, the trainer of MPS SEBASTION received third place money. The decision was made at the meeting of April 30, 1991, to redistribute the prize money awarded to the trainer/owner consistent with the agreement of the trainers. BISCAYNE KENNEL CLUB was closing and the public had disbursed by the time the alleged mis-blanketing was reported to Mr. Campbell. By the time the racing officials were made aware of the alleged mis-blanketing on the night of April 30, 1991, it was too late to recall the official results or to redistribute the payoff that had been made to the public pursuant to the official results that had been posted. In addition to the three trainers, the other persons in attendance at the meeting in Mr. Campbell's office following the 13th race on April 30, 1991, were: Mr. Campbell, Respondent Crawford, Respondent May, Mr. Culpepper, Kay Spitzer, and Jerry Escriba. Ms. Spitzer was the president of Biscayne Kennel Club. Mr. Escriba was acting in the capacity as the Paddock Judge. Mr. Escriba was not, as of April 30, 1991, licensed by Petitioner to act in the capacity as Paddock Judge. Mr. Escriba had attempted to become licensed, but had been unable to do so because Petitioner was temporarily out of the forms necessary to process the application. However, the Division Director of the Division of Pari-Mutuel Wagering had given his permission for Mr. Escriba to serve as Paddock Judge for the meet at Biscayne Kennel Club that included the races on April 30, 1991. While Mr. Escriba had not previously served as a Paddock Judge, he was qualified by experience and training to serve in that capacity. Mr. Escriba had participated in pari-mutuel events for approximately 13 years and had held a variety of positions all related to the management and control of racing greyhounds. Mr. Escriba had observed the Paddock Judge perform his duties on thousands of occasions. Before Mr. Escriba was assigned the position of Paddock Judge, he was subjected to a two week training period under the supervision of Respondent Crawford and a former experienced Paddock Judge named Chris Norman. Respondent Crawford and Respondent May knew Mr. Escriba well and had confidence in his abilities. The Paddock Judge is a racing official who has the responsibility to ensure that the greyhounds participating in a pari-mutuel event are properly identified and that each greyhound runs its assigned race in its assigned post position. The Paddock Judge, in keeping with his responsibilities, is required to engage in a series of examinations of each greyhound which are designed to ensure proper identification. Each greyhound has what is referred to as a "Bertillon card", which contains measurements, markings, and other identifying information unique to each greyhound. The Paddock Judge also examines the greyhound identification tattoo which is inscribed upon the ear of each greyhound. After the Paddock Judge completes the identifying process, a tag which designates the race and the post position in which the greyhound is to participate is placed upon the greyhound's collar. Just prior to the race, when a greyhound that is about to race is on the viewing stand, the Paddock Judge executes his final check by ensuring that the tag upon the greyhound's collar corresponds to the race and the blanket number that has been assigned to the greyhound. At the meeting of April 30, 1991, and at the formal hearing, Mr. Escriba adamantly maintained that the alleged mis-blanketing of the greyhounds had not occurred. Mr. Escriba maintained that all identifying procedures had been properly followed and that the trainers were mistaken. Mr. Escriba's only explanation as to how such an alleged mis-identification could have occurred was that he was operating shorthanded, with only twelve leadouts instead of the usual complement of sixteen. Mr. Escriba asserted at the hearing that the twelve leadouts were enough to perform the work. Mr. Culpepper had little doubt after the meeting in Mr. Campbell's office broke up in the early morning hours of May 1 that the mis-identification had occurred and he believed that Mr. Escriba had not followed the rigid identification procedures. Because it was too late to redistribute the pay out to the public and because there was a conflict between the trainers and the Paddock Judge as to what had happened, Respondent Crawford, Respondent May, and Mr. Culpepper decided that the best course of action was to seek guidance from the highest state official available by telephone. The official contacted was Allen P. Roback, the Regional Supervisor of the Bureau of Operations of the Divisions of Pari-Mutuel Wagering. Mr. Roback had general supervisory authority over the operation of Biscayne Kennel Club and direct supervisory authority over the Respondents. Mr. Roback was contacted by telephone shortly after midnight, in the early morning hours of May 1, 1991. During the telephone call in the early morning hours of May 1, 1991, Mr. Roback talked with Mr. Campbell and Mr. Culpepper. Mr. Roback instructed them that the matter of the 13th race should be handled in the same manner as an incident generally referred to as the "photo finish" incident. The "photo finish" incident occurred at Biscayne Kennel Club in December of 1990 during a race for which Mr. Roback served as the Division Judge, Respondent Crawford served as the presiding Judge, and Respondent May served as the Associate Judge. Following the subject race, the judges declared the official results relating to the first and second place winners. A photo of the finish was provided the judges approximately eight minutes after the race concluded and revealed that the greyhound that had been declared the first place winner had actually been beaten by the greyhound that had been declared the second place finisher. Notwithstanding the undisputed photographic evidence that the official results were wrong, it was decided by the judges that the official results would not be changed. The pari-mutuel pay out to the public was made on the basis of the official results. However, the prize money to the trainers/owners of the greyhounds was distributed based on the actual finish of the first and second greyhounds as revealed by the photograph. Mr. Roback had been clear in his instruction not to change the official results following the "photo finish" incident. The two greyhounds that finished first and second in that race continued to race thereafter with their respective performance lines as indicated by the official and not the actual order of finish. After Mr. Culpepper had spoken with Mr. Roback, Respondent Crawford and Respondent May were advised that the Division of Pari-Mutuel Wagering would be conducting an official investigation into the events surrounding the conduct of the 13th race at Biscayne Kennel Club on April 30, 1991. Respondent Crawford and Respondent May were not directed to change the official results of the 13th race, nor were they told to withhold the three greyhounds involved in the dispute from further participation in pari-mutuel events pending the investigation. Respondent Crawford and Respondent May reasonably believed that the official results of the 13th race were final until otherwise notified by the Division of Pari-Mutuel Wagering. On May 1, 1991, during normal business hours, the alleged mis- blanketing incident was assigned to Marilyn (Lyn) Farrell for investigation. Ms. Farrell is an investigator for Petitioner's Bureau of Investigations. One of Ms. Farrell's assignments was to make a determination of the actual order of finish of the 13th race. Ms. Farrell's investigative report was completed on May 9, 1991. In that report, Ms. Farrell correctly concluded that the mis- blanketing of the three greyhounds had occurred, that the official results were wrong, and that the actual order of finish was that agreed to by the three trainers of the greyhounds involved. Mr. Roback and Ms. Farrell each visited Biscayne Kennel Club during the course of the investigation. Mr. Roback first spoke with Gary Duell, the Racing Secretary, who told him to talk with Respondent Crawford. Respondent Crawford asked Mr. Roback how much trouble he was in and asked him to meet with Mr. Campbell. While the investigation was pending, Mr. Escriba told Respondent Crawford that on April 13 there was confusion in the area where the greyhounds who were to run the 13th race were being blanketed. Mr. Escriba said that he panicked and released the greyhounds to the track before checking all of their tags when the bell for the 13th race rang. Respondent Crawford passed this information on to Mr. Roback. There was no discussion between Mr. Roback and the Respondents as to whether the racing lines should differ from the official results of the race. In the period between April 30, 1991, the date of the incident, and May 9, 1991, the date Ms. Farrell completed her investigation, NY DAMASCUS, MPS SEBASTION, and STRIDDEN RITE continued to participate at pari-mutuel events at Biscayne Kennel Club. A racing line for each greyhound scheduled to run in a pari-mutuel event is published in the event's program. The program is distributed to the public. Members of the public then use the information contained in the racing line to determine their bets. A racing line gives certain information pertaining to the greyhound, including the greyhound's recent performance history. Because the information is used to formulate wagers, it is important that the information is accurate. The chart writer is the official with direct responsibility for the accuracy of the racing lines. The chart writer at Biscayne Kennel Club at the times pertinent to this proceeding was Mildred A. Ketchum. At Biscayne Kennel Club on May 3, 1991, MPS SEBASTION participated in the 6th race, STRIDDEN RITE participated in the 10th race, and NY DAMASCUS participated in the 15th race. The racing line for each of these greyhounds contained in the official racing program published by Biscayne Kennel Club for the races held May 3, 1991, charted the performance of that greyhound in the 13th race for April 30, 1991, consistently with the official results that had been posted following the race. At Biscayne Kennel Club on May 7, 1991, MPS SEBASTION participated in the 4th race. The racing line for MPS SEBASTION contained in the official racing program published by Biscayne Kennel Club for the races held May 7, 1991, charted the performance of that greyhound in the 13th race for April 30, 1991, consistently with the official results that had been posted following the race. At Biscayne Kennel Club on May 8, 1991, STRIDDEN RITE participated in the 1st race. The racing line for STRIDDEN RITE contained in the official racing program published by Biscayne Kennel Club for the races held May 8, 1991, charted the performance of that greyhound in the 13th race for April 30, 1991, consistently with the official results that had been posted following the race. On May 9, 1991, John Pozar, Petitioner's Bureau Chief for the Bureau of Investigation, called Respondent Crawford, indicated that the investigation had confirmed that the mis-identification had occurred, and instructed him to scratch NY DAMASCUS from a race that was scheduled for later that day. Mr. Pozar also instructed Respondent Crawford to change the racing lines for the three greyhounds to reflect their correct performances on April 30, 1991. This was the first direction from Petitioner as to the results of the investigation or as to the action that should be taken. Respondents took immediate action to comply with Mr. Pozar's instructions. The correct performance lines for NY DAMASCUS, STRIDDEN RITE, and MPS SEBASTION in the 13th race at Biscayne Kennel Club did not appear in any Biscayne Kennel Club Program until May 11, 1991. Respondent Crawford, Respondent May, and Mr. Culpepper, as the three judges, had supervisory responsibility and authority over the chart writer and could have ordered her to change the performance lines for the three greyhounds involved in the incident of April 30, 1991, at any time between April 30 and May 9. The three judges did not act to change the performance lines between April 30 and May 9 in deference to the investigation being conducted by Petitioner's investigators. In the matinee program for May 11 for the 12th race, the racing line for NY DAMASCUS accurately reflects that it finished eighth in the 13th race on April 30, 20 lengths off the pace. In contrast, the racing lines for NY DAMASCUS contained in the May 3 program erroneously reflected that NY DAMASCUS finished second by a nose. In the evening program for May 11 for the 13th race, the racing line for STRIDDEN RITE accurately reflects that it finished second by a nose on April In contrast, the racing lines for STRIDDEN RITE contained in May 3 and May 8 programs erroneously reflected that STRIDDEN RITE finished third. In the evening program for May 11 for the 2nd race, the racing line for MPS SEBASTION accurately reflects that it finished third, five lengths off the pace, on April 30. In contrast, the racing lines for STRIDDEN RITE contained in May 3 and May 7 programs erroneously reflected that MPS SEBASTION finished eighth, twenty lengths off the pace. Petitioner has adopted no rule which establishes the circumstances under which racing lines can vary from official results in a case such as this. The three judges have to use their judgment as to the appropriate course of action to take in resolving a charge of mis-blanketing. Official results of a race are not to be overturned by the judges in the absence of competent, substantial evidence that the official results are wrong. The record of this proceeding did not establish that these Respondents failed to act within the scope of their discretion in deferring to the investigation by Petitioner. Likewise, the record fails to establish that the Respondents failed to exercise their supervisory authority and responsibility by waiting to change the racing lines until after the official investigation was completed.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered which dismisses the administrative complaint brought against Respondent, Robert C. Crawford, in Case No. 91-6682 and which dismisses the administrative complaint brought against Respondent, Robert E. May, in Case No. 91-8107. DONE AND ORDERED this 29th day of July, 1992, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of July, 1992.
The Issue Whether Respondent is responsible for three violations of Section 550.2415(1)(a), Florida Statutes, as alleged in the Administrative Complaint, and if so, what penalty should be imposed.
Findings Of Fact Petitioner is the State of Florida, Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering which is created by Section 20.165(2)(f), Florida Statutes. The Division regulates pari-mutuel wagering in the State of Florida. Respondent, Donald S. Abbey, was the holder of a pari-mutuel occupational license, License No. 2013666-1081, that was issued by the Division during the month of May 2001. Hialeah Park is a facility operated by a permit holder authorized to conduct thoroughbred racing and pari-mutuel wagering in the State of Florida. Hialeah Park was so authorized in May 2001. On May 16, 2001, Respondent was the trainer of record and owner of a thoroughbred race horse named “Savahanna.” The horse Savahanna finished second in the first race at Hialeah Park on May 16, 2001. Immediately after the race a urine sample was collected from Savahanna. The urine sample was assigned sample No. 748428 and was shipped to the University of Florida Racing Laboratory. The University of Florida Racing Laboratory tested urine sample No. 748428 and found it to contain Terbutaline. On May 16, 2001, Respondent was the trainer of record and owner of a thoroughbred race horse named "Hada Clue." The horse Hada Clue finished second in the third race at Hialeah Park on May 16, 2001. Immediately after the race, a urine sample was collected from Hada Clue. The urine sample was assigned sample No. 748440 and was shipped to the University of Florida Racing Laboratory. The University of Florida Racing Laboratory tested urine sample No. 748440 and found it to contain Terbutaline. On May 18, 2001, Respondent was the trainer of record and owner of a thoroughbred race horse named "Sounds Like Scott." The horse Sounds Like Scott finished second in the fifth race at Hialeah Park on May 16, 2001. Immediately after the race a urine sample was collected from Sounds Like Scott. The urine sample was assigned sample No. 748536 and was shipped to the University of Florida Racing Laboratory. The University of Florida Racing Laboratory tested urine sample No. 748536 and found it to contain Terbutaline. Terbutaline is a bronchodilator and a Class 3 drug according to the Association of Racing Commissioners International classification system. In his Election of Rights, Respondent indicated that he was not the trainer of record. Specifically, he indicated that he had hired a person named Dimitrius Monahas as the trainer with the knowledge of the stewards of Hialeah Park. State Steward Walter Blum testified at the hearing that Respondent was, in fact, the trainer of record for the horses Savahanna, Hada Clue, and Sounds Like Scott. At Hialeah, the trainer of record is determined at the time stall spaces are assigned at the beginning of a meet. Respondent’s name appears in the official programs as both the trainer and the owner of the horses at issue. There is a procedure at Hialeah to notify the stewards of a change in trainer. However, Respondent did not notify the stewards of any change. Dimitrius Monahas signed sample tags for sample Nos. 748440 and 748536 as the owner’s witness. The sample tags list Respondent as both the trainer and owner of the horses.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Division of Pari-Mutuel Wagering enter a final order in this matter suspending Respondent’s occupational license for a period of ten (10) days and imposing a fine of $850.00. It is further recommended that the Division of Pari-Mutuel Wagering order that any purse received as a result of the second-place finishes of two of the races in question be returned. DONE AND ENTERED this 16th day of October, 2002, in Tallahassee, Leon County, Florida. DON W. DAVIS 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 16th day of October, 2002. COPIES FURNISHED: Donald S. Abbey Post Office Box 1199 Pilot Point, Texas 76258-1199 Joseph M. Helton, Jr., Esquire Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-2202 David J. Roberts, Director Division of Pari-Mutuel Wagering Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202
