The Issue The issue for disposition in this case is whether proposed Florida Administrative Code Rule 61D-6.0052 (Proposed Rule) is an invalid exercise of delegated legislative authority as defined in section 120.52(8), Florida Statutes.
Findings Of Fact Petitioner is a Florida for-profit corporation operating at the Palm Beach Kennel Club (PBKC) in West Palm Beach, Florida. Petitioner’s members are owners of greyhounds that are raced at the PBKC. Of the 12 greyhound kennels that operate at PBKC, nine are current members of Petitioner. Petitioner’s members each hold licenses issued by the Division pursuant to chapter 550, Florida Statutes. Some of the PBKC kennel owners are themselves licensed greyhound trainers, and some employ licensed trainers. Petitioner’s Articles of Incorporation establish its purposes as including the promotion of “the welfare and care of greyhounds, . . . including, but not limited to, . . . promoting fair regulatory treatment of the greyhound industry.” The Division is the state agency charged with regulating pari-mutuel wagering activities in Florida pursuant to chapter 550. The Proposed Rule The full text of the Proposed Rule is as follows: 61D-6.0052 Procedures for Collecting Samples from Racing Greyhounds Designating Greyhounds for Sampling: Any greyhound the judges, division, track veterinarian, or authorized division representatives designate, shall be sent immediately prior to the race to the detention enclosure for examination by an authorized representative of the division for the taking of urine and/or other such samples as shall be directed for the monitoring and detection of both permissible and impermissible substances. When possible, a sample should be collected from two (2) greyhounds per race. When possible, greyhounds from more than one participating kennel should be sampled per performance. Additional greyhounds may also be sampled if designated by the judges, division, track veterinarian, or authorized division representatives. Collection of Samples: Urine and/or other samples shall be collected by an authorized representative of the division in an unused sample container supplied by the division, or its agent. Authorized representatives of the division shall wear unused gloves supplied by the division, or its agent, during sample collection until the sample container is sealed with its lid. Authorized representatives of the division shall use a sample card with a unique identifier to record the date of sample collection and the identification tattoo, microchip or name of the greyhound sampled or attempted to be sampled. The owner, trainer of record, or other authorized person is permitted to witness when the sample is collected from their greyhound. Failure of an owner, trainer of record or other authorized person to witness and/or sign the sample card shall not preclude the division from proceeding with sample analysis. Sealing and Labeling of Samples: As soon as possible after a sample is collected, the sample container shall be sealed with its lid. The sample container shall be labeled with the sample card’s unique identifier. Evidence tape shall be placed over both the sample container and lid on at least two sides. The authorized representative of the division that sealed the sample container shall initial the evidence tape on the sample container. Storing and Shipping of Samples: The samples shall be stored in a lockable freezer or container in a restricted area accessible by only authorized representatives of the division until the time of shipment. Upon the completion of packing the samples for shipment, the shipping container shall be locked. All appropriate forms for shipment shall be completed and included with the shipment to ensure correct delivery and identification of the contents. The samples shall be shipped to the laboratory under contract with the division for testing of the samples via the laboratory’s contracted common carrier. Authority of the Division: The division investigator or other authorized representative is authorized to confiscate any legend or proprietary drugs, medications, unlabeled medication, medication with altered labels, medicinal compounds (natural or synthetic) or other materials which are found on the grounds of greyhound race tracks and kennel compounds or in the possession of any person participating in or connected with greyhound racing, including veterinarians and trainers, and which are suspected of containing improper legend or proprietary drugs, medications, medicinal compounds (natural or synthetic) or other materials which are illegal or impermissible under these rules. Such legend or proprietary drugs, medications, unlabeled medication, medication with altered labels, medicinal compounds (natural or synthetic) or other materials shall be delivered to the laboratory under contract with the division for analysis. The division is authorized to confiscate any evidence that an illegal or impermissible legend or proprietary drug, medication, or medicinal compound (natural or synthetic) may have been administered to a racing animal. It is a violation of these rules for a licensee to threaten to interfere, actually interfere or prevent the taking of urine, blood, saliva or other samples authorized by Chapter 550, F.S. For such a violation, the division may impose any disciplinary penalties authorized by Chapter 550, F.S., or the rules promulgated thereunder. Rulemaking Authority 120.80(4)(a), 550.0251(3), 550.2415(12), (13) FS. Law Implemented 120.80(4)(a), 550.0251, 550.1155, 550.2415 FS. History–New . Issues for Disposition Section 120.56(2)(a) provides that “the agency has the burden to prove by a preponderance of the evidence that the proposed rule is not an invalid exercise of delegated legislative authority as to the objections raised.” The “objections raised” as identified in the Joint Pre- hearing Stipulation are those that remain for disposition in this proceeding, with issues not preserved having been waived. See Palm Beach Polo Holdings, Inc. v. Broward Marine, Inc., 174 So. 3d 1037 (Fla. 4th DCA 2015). As set forth in the recitation of “Petitioner’s Position,” the following issues are at issue: The proposed rule refers to urine and/or other samples in its text, yet only contains procedures for urine collection; The proposed rule fails to adequately detail necessary chain of custody procedures for sampling racing greyhounds; The proposed rule ignores basic scientific principles as to contamination; The proposed rule ignores basic scientific principles as to the timing of sampling; The proposed rule ignores basic scientific principles as to the temperature of a sample; The proposed rule fails to provide trainers and owners of an opportunity to witness their greyhounds' sampling; The proposed rule grants too much discretion to Respondent; Respondent failed to follow the applicable rulemaking procedures set forth in chapter 120; The proposed rule does not limit its application to urine; Stipulated Facts The following facts were stipulated by the parties: It is possible that a racing greyhound could become exposed to environmental substances during the time between the trainer relinquishing it at the track and the sampling. The reason that racing greyhounds are tattooed is for identification purposes. It is important to prevent contamination of a racing greyhound's sample. It is important to preserve the integrity of a racing greyhound's sample. The Proposed Rule does not require racing greyhound samples to be stored frozen. However, subsection (4)(a) of the Proposed Rule requires that the samples are stored in a lockable freezer or container. The Proposed Rule does not require that the racing greyhound samples be kept refrigerated. However, subsection (4)(a) of the Proposed Rule requires that samples be stored in a lockable freezer or container. The Proposed Rule does not contain any provisions for the drawing of blood, "other specimens," or other fluids from the racing greyhound. The Proposed Rule does not describe how all the individuals involved in the chain of custody of a racing greyhound sample record their involvement. The Proposed Rule contains a section entitled "Sealing and Labeling of Samples." The Proposed Rule does not describe the chain of custody for the taking of "other specimens" from the racing greyhound. The Proposed Rule does not describe the chain of custody procedures associated with materials confiscated under paragraph five of the Proposed Rule. Respondent published its Notice of Development of Rulemaking for Proposed Rule 61D-6.0052, F.A.C. (Notice of Development), on January 22, 2018. Respondent published its Notice of Proposed Rule 61D- 6.0052, F.A.C. (Notice of Proposed Rule), on January 29, 2018. Respondent's Notice of Proposed Rule 61D-6.0052, F.A.C., indicated it was approved by the agency head, Jonathan Zachem, on January 26, 2018, a mere [four] days after publication of Respondent's Notice of Development of Rulemaking for Proposed Rule 61D-6.0052, F.A.C. On February 6, 2018, a rule development workshop was requested for Proposed Rule 61D-6.0052, F.A.C. Respondent did not hold a rule development workshop for Proposed Rule 61D-6.0052, F.A.C. Respondent did not provide an explanation in writing as to why a workshop was unnecessary for Proposed Rule 61D-6.0052, F.A.C., other than Bryan A. Barber's letter of February 13, 2018. Facts Adduced at Hearing The purpose and effect of the Notice of Development was “to further clarify and describe the procedures performed by the Division in collecting samples from greyhounds and to create a rule specific to the greyhound sample collection. The Notice of Proposed Rule did not contain a statement of estimated regulatory costs imposed on small businesses. On February 6, 2018, Petitioner, through its representative, sent a letter to the Division requesting a rule development workshop. On February 13, 2018, the Division noted that the “rule development phase” ended with the publication of the Notice of Proposed Rule, and the request for a workshop was, therefore, untimely. There is no evidence that anyone provided the Division with information regarding a statement of estimated regulatory costs, or provided the Division with a proposal for a lower cost regulatory alternative. No one requested that a public hearing be held on the Proposed Rule. Racing greyhounds are delivered to the track by their owners or trainers prior to the commencement of their race card. Greyhounds racing during the matinee card are delivered at one time, and greyhounds racing during the evening card are delivered at a later time. The greyhounds are all weighed in about 60 to 90 minutes prior to the first race, regardless of the race in which a particular greyhound is scheduled to appear. After weigh-in, the greyhounds are handed over to the “lead-outs,” who are track employees, and taken to the ginny pit. Each greyhound is then placed in a numbered cage designating its race and position, and held there until its race is scheduled to commence. From the time an animal is given over to the lead-outs until its race is over, they are out of the control and sight of the owners and trainers. For greyhounds racing in the last race of a card, that period can be well in excess of four hours. Prior to each race, the race judge, Division, track veterinarian, or “authorized division representative” designates the greyhounds to be tested for that race. The process was not described, other than as described in the rule that “[w]hen possible, a sample should be collected from two (2) greyhounds per race. When possible, greyhounds from more than one participating kennel should be sampled per performance.” Mr. Ehrhardt testified that “ideally it’s blind and that you just pick one at random,” and that dogs from separate kennels be selected “to ensure that no one is singled out.” However, the Proposed Rule contains no criteria for the selection of an animal other than its being in the race. Even a requirement that the selection be random, and a mandatory selection of different kennels be made “when possible,” is sufficient to preclude an unfettered exercise of discretion in the selection of the greyhound. As it is, the selection of both dogs and kennels is completely within the discretion of the Division. Upon selection, the greyhounds are led to an open area to relieve themselves. At the Orange Park Kennel Club, the area is a restricted access grass and sand area surrounded by a chain link fence. There was no evidence as to other tracks, but there is little to suggest that the areas at other tracks are dissimilar. The process of collecting the sample involves watching the dog for a sign that it is ready to urinate, and then holding a plastic cup at the end of a stick, an “armed doohickey” as described by Mr. Ehrhardt, under the dog until it produces a sample. The sampler wears fresh gloves and uses an unused cup. When the sample is collected, the sampler places the lid on the container, labels the container, and places evidence tape “over both the sample container and lid on at least two sides.” After the sample cup is capped, labeled, and sealed, it is placed in a “lockable freezer or container in a restricted area.” Mr. Ehrhardt indicated that it was the Division’s intent that the freezer or container should be locked at all times that it is not being accessed to place samples in it, and that it should not be left unlocked. However, the plain language of the rule suggests otherwise. The lockable container is to be in a restricted area, but is only required to be locked “[u]pon completion of the packing of the samples for shipment.” Dr. Tobin testified that samples must be kept frozen or, at a minimum, refrigerated. Mr. Ehrhardt testified that once a sample is collected, it goes “straight to the freezer,” suggesting that freezing is the preferred method of storage. Failure to do so can result in degradation of the sample, bacterial growth, and, in certain cases, breakdown of substances into metabolites that would more closely mimic a prohibited substance in a dog’s urine. Petitioner argued that the timing of the sampling is problematic for another reason, other than the holding period for the greyhounds. Many owners and trainers have more than one dog racing during a card. The ginny pit and the finish line are at different ends of the track. Therefore, a trainer or owner may be collecting their dog(s) at the conclusion of a race at the same time the pre-race sample is being taken for the next race, making observation of the sampling difficult from a practical perspective. However, both Mr. Agganis and Mr. Chin acknowledged that there was nothing to directly prevent an owner or trainer from observing the sampling. Furthermore, there is nothing to prevent the owner or trainer, or even Petitioner’s members collectively, from having an employee or agent witness the sampling on their behalf, since the rule allows “[t]he owner, trainer of record, or other authorized person” to witness the sampling. In no fewer than 10 places in the Proposed Rule, actions are authorized to be taken by an “authorized representative” of the Division, or an “other authorized person.” The Proposed Rule does not identify who those representatives or persons might be, or how they may come to be authorized. Mr. Ehrhardt testified that the purpose of the less definitive description was “to figure out a way to make the rule flexible,” to meet the possibility that a “job title is going to change.” During Mr. Ehrhardt’s visit to the Orange Park greyhound racing facility, he was allowed into the restricted ginny pit area by “authorized personnel from the division,” who he described as “veterinarian assistants, chief inspector, investigators, people like that.” Petitioner objected to the lack of specificity because it provided no assurances that these individuals are competent, or held to any particular standard.
The Issue The issue in this case is whether Respondent, Srdan Saric, committed violations of Chapter 550, Florida Statutes (2005), and Florida Administrative Code Chapter 61D-6, as alleged in an Administrative Complaint filed with the Department of Business and Professional Regulation in DBPR Case Nos. 2005042972, 2005039423, and 2005042974, and amended January 30, 2006; and, if so, what disciplinary action should be taken against his State of Florida pari-mutuel wagering occupational license.
Findings Of Fact The Parties. Petitioner, the Department of Business and Professional Regulation, Division of Pari-mutuel Wagering (hereinafter referred to as the "Division"), is an agency of the State of Florida created by Section 20.165(2)(f), Florida Statutes, and charged with the responsibility for the regulation of the pari- mutuel wagering industry pursuant to Section 550.0251, Florida Statutes. Respondent, Srdan Saric, is, and was at the times material to this matter, the holder of a pari-mutuel license, number 2016930-1021, issued by the Division. During the time period at issue in this case, Mr. Saric trained harness race horses and was a jockey at the harness race course of Pompano Park Racing (hereinafter referred to as "Pompano Park"), located in Pompano Beach, Florida. Pompano Park is a harness horse racing facility authorized to conduct pari-mutuel wagering in Florida and is the location of all activity material to this matter. On July 27, 2005, Respondent was the trainer of record and jockey for two standard bred harness race horses, known as "Youngbro Clever" and "Swift Courier." Both horses were owned by Jeanette Glowacki. The Events of July 27, 2005. Youngbro Clever and Swift Courier were both scheduled to race at Pompano Park the evening of July 27, 2005. Youngbro Clever was to run in the fourth race and Swift Courier was to run in the twelfth race. The fourth race was scheduled to begin at approximately 8:15 to 8:30 p.m. Both horses were being housed in Barn C of Pompano Park. That barn was shared by the two horses being trained by Mr. Saric and horses owned and trained by Michael Snyder. Tack boxes, where equipment was stored, were located at Barn C adjacent to the wall just outside the horse stalls. Those located in the area where Mr. Saric's horses were housed were considered to be within areas of Barn C which he occupied or had the right to occupy. The tack boxes are part of the premises within the grounds of a racing permitholder where racing animals were lodged or kept and which Mr. Saric occupied or had the right to occupy. At approximately 7:30 p.m., on July 27, 2005, Jeremy Glowacki, the son of the owner of Youngbro Clever and Swift Courier and an employee Mr. Saric had previously fired, informed Pompano Park security supervisor Richard Masters that he had witnessed Mr. Saric place syringes in a tack box located just outside Barn C, Stall 8. Based upon Mr. Glowacki's report, Pompano Park security searched the tack box and found a 35 cc hypodermic syringe with needle attached and a 12 cc hypodermic syringe with needle attached. As a result of the discovery of the syringes, Youngbro Clever and Swift Courier were immediately scratched from their scheduled races and were sent to the State Veterinarian for drug testing. Mr. Saric was also suspended from Pompano Park and remained so at the time of the final hearing of this matter. The State Veterinarian drew blood serum sample 173675 from Youngbro Clever and blood serum sample 173680 from Swift Courier. These samples were processed in accordance with established procedures. Both blood serum samples were, along with the two syringes recovered from Mr. Saric's tack box, sent to the University of Florida Racing Laboratory (hereinafter referred to as the "Racing Laboratory"), for analysis. Results of Racing Laboratory Testing. The Racing Laboratory, following applicable procedures, performed an analysis on the syringes found in Mr. Saric's tack box and the blood serum samples taken from Youngbro Clever and Swift Courier. No prohibited substance was detected by the Racing Laboratory analysis of the 35 cc syringe. Flunixin was detected by the Racing Laboratory analysis of the 12 cc syringe. Flunixin is a "non-steroidal anti-inflammatory drug" which can be used to suppress inflammation and provide pain relief to race horses. The Association of Racing Commissioners International, Inc. has classified Flunixin under the Uniform Classification Guidelines for Foreign Substances as a "Class IV" drug. As such, it is considered an "impermissible substance." Flunixin in excess of 200 ng/ml. was also found by the Racing Laboratory in blood serum sample number 173675 which had been collected from Youngbro Clever. Flunixin in excess of 200 ng/ml. was also found by the Racing Laboratory in blood serum sample number 173680, which had been collected from Swift Courier. In addition to Flunixin, the Racing Laboratory test of blood serum sample number 173675 collected from Youngbro Clever and blood serum sample number 173680 collected from Swift Courier also revealed that those samples contained phenylbutazone, or its metabolites, in excess of 16 micrograms per milliliter of serum. Like Flunixin, phenylbutazone is a "non-steroidal anti-inflammatory drug" which can be used to suppress inflammation and provide pain relief to race horses. Pursuant to Florida Administrative Code Rule 61D- 6.008, phenylbutazone, unlike Flunixin, may be administered to a race horse in an amount which, following the running of a race, will result in the horse's blood serum being found to contain less than 8 micrograms per milliliter of serum. Dr. Cole testified convincingly and credibly that Flunixin and phenylbutazone had been administered to Youngbro Clever and Swift Courier within 24 hours of their scheduled races on June 27, 2005. Youngbro Clever and Swift Courier, having been administered Flunixin and phenylbutazone within 24 hours of their scheduled races, would have been able to compete at a higher level in their scheduled races than if these drugs had not been ministered to them. According to Dr. Cole, whose unrebutted testimony in this regard is also credited, if Youngbro Clever and Swift Courier had been allowed to run their scheduled races, blood samples collected immediately after their respective races would have revealed the presence of phenylbutazone in each horse in excess of 8 micrograms per milliliter of serum. Mr. Saric's Prior Disciplinary History. Mr. Saric has previously been disciplined by the Division on two separate occasions. On both occasions, Mr. Saric was fined because Methocarbamol (a skeletal muscle relaxant and Class IV drug) was detected in urine samples collected from Youngbro Clever as part of the post race analyses. The first violation for which Mr. Saric was disciplined took place on December 6, 2004. Mr. Saric was fined $250.00 for this violation of Section 550.2415(1)(a), Florida Statutes (2004), and Florida Administrative Code Rule 61D- 6.011(1). The second violation for which Mr. Saric was disciplined took place on April 15, 2005. Mr. Saric was fined $500.00 for this violation of Section 550.2415(1)(a), Florida Statutes, and Florida Administrative Code Rule 61D-6.011(1). Mr. Saric's Responsibility for Youngbro Clever and Swift Courier. While Mr. Saric attempted, unsuccessfully, to prove that he did not place the syringes in his tack box or inject Flunixin and phenylbutazone into Youngbro Clever and Swift Courier, the evidence failed to support such a finding. The evidence also failed to prove that Jeremy Glowacki was responsible for these violations. More importantly, the evidence failed to prove that Mr. Saric took the measures necessary to protect Youngbro Clever and Swift Courier in particular and the racing industry generally from harm, especially considering the fact that this case involves the third time that Youngbro Clever has tested positive for a prohibited substances in his blood.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the final order be entered by the Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering, finding that Srdan Saric violated Sections 550.105(5)(b) and 550.2415(1)(c), Florida Statutes, and Florida Administrative Code Rules 61D-6.004(2) and 61D-6.011(1), as described in this Recommended Order; suspending his license for a total period of two years from the date of the final order; and requiring that he pay a fine of $6,000.00. DONE AND ENTERED this 14th day of April, 2006, in Tallahassee, Leon County, Florida. S LARRY J. SARTIN 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 14th day of April, 2006. COPIES FURNISHED: S. Thomas Peavey Hoffer Ralf E. Michels Assistants General Counsel Department of Business and Professional Regulation Division of Pari-Mutuel Wagering Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202 Rose H. Robbins, Esquire One Boca Place 2265 Glades Road Suite 324 Atrium Boca Raton, Florida 33431 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 Josefina Tamayo, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202
The Issue This is a case in which the Petitioner, for reasons set forth in an Amended Administrative Complaint and Notice of Intent to Deny License, seeks to impose administrative fines against the Respondent, seeks to suspend or revoke the Respondent’s thoroughbred racing permit, and seeks to deny the Respondent’s application for another thoroughbred racing license.
Findings Of Fact The parties The Petitioner is the State of Florida, Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering (Division), which is created by Section 20.165(2)(f), Florida Statutes. The Respondent has been the holder of a permit to conduct pari-mutuel wagering upon thoroughbred horse racing in Dade County, Florida, since 1978. Background facts The Respondent has between 1250 and 1350 stable stalls. Gulfstream, a nearby thoroughbred horse racing facility, has about 1450 stable stalls. Calder, another nearby thoroughbred horse racing facility, has about 1750 stable stalls. This larger number of stalls allows Calder to run races when other South Florida thoroughbred tracks are not running. The racing season of 1989-1990 was the first Florida thoroughbred horse-racing season after the statutory deregulation of racing dates. The 1989-1990 racing season was the first racing season during which the Respondent had other South Florida thoroughbred races competing with it on every date on which it was scheduled to race during that season. During the 1989-1990 racing season, the Respondent ran in direct competition with Tropical Park, which was a separate permit- holder owned by Calder. The Respondent’s annual license for the 1989-1990 racing season called for it to race on 141 days during that racing season, but it only raced on 28 days. The Respondent’s decision to cancel the remainder of its racing dates during the 1989-1990 season was due primarily to an insufficient number of available horses to field a full program of horses on a day-to-day basis on all of the days on which the Respondent was supposed to have races. Although the matter is not entirely free from doubt, it was believed by some horsemen at that time that the lack of a sufficient number of horses at Hialeah during the 1989-1990 racing season was due, at least in part, to alleged threats by functionaries of Calder to the effect that horses stabled at Calder that raced at the Respondent's race track that season would be evicted from the Calder stables.2 In 1989, Calder was owned by an individual named Bert Firestone. In 2002, Calder was owned by, and is still owned by, Churchill Downs, a public company. In 1989, Gulfstream was owned by the Donn family. In 2002, Gulfstream was owned by, and is still owned by, Magna Entertainment Corporation. In 1991, the deregulation legislation that permitted the competitive racing dates that first occurred during the 1989-1990 racing season was modified. The modification imposed tax penalties on race tracks that ran more than one of the three designated racing periods. The modification was, however, written to sunset in 2001. The effect of this modification was to give the Respondent a ten-year reprieve from head-to-head competition with Gulfstream and Calder. The Respondent lobbied for the passage of legislation that would, in effect, have forgiven the Respondent for failing to run its licensed race dates in March, April, and May of 2002. The legislation was enacted into law in 2002. Gulfstream filed a lawsuit challenging the constitutionality of that legislation. The legislation that would have forgiven the Respondent’s failure to run its races was eventually found to be unconstitutional. In 2003, the Respondent proposed additional legislation that would have forgiven the Respondent for not operating in the future. Gulfstream successfully lobbied against the passage of the legislation. The Respondent has a very large and very high quality turf course. Horsemen prefer the quality of the turf at the Respondent’s track, but they run at Gulfstream because of the better purses. Gulfstream and Calder both enter into revenue sharing contracts (called “50-50 contracts”) with the horsemen. The Respondent has never agreed to revenue sharing and typically paid only the statutory minimums. The 2001-2002 thoroughbred racing season On December 12, 2000, the Respondent filed an application for an annual license to conduct pari-mutuel operations at a thoroughbred racing meet during the 2001-2002 thoroughbred racing season. On February 13, 2001, the Division issued Respondent License Number 1300, for the 2001-2002 thoroughbred racing season. This license required Respondent to conduct 58 matinee thoroughbred performances from March 17, 2002, through May 22, 2002. The Respondent did not conduct any of the licensed thoroughbred performances from March 17, 2002, through May 22, 2002. The Respondent’s failure to conduct any of the licensed thoroughbred performances from March 17, 2002, through May 22, 2002, was not the direct result of a fire. The Respondent’s failure to conduct any of the licensed thoroughbred performances from March 17, 2002, through May 22, 2002, was not the direct result of a strike. The Respondent’s failure to conduct any of the licensed thoroughbred performances from March 17, 2002, through Mary 22, 2002, was not the direct result of a war. The Respondent’s failure to conduct any of the licensed thoroughbred performances from March 17, 2002, through May 22, 2002, was not the direct result of a disaster beyond the ability of Respondent to control. Annual licenses to conduct pari-mutuel operations at thoroughbred racing meets during the 2001-2002 thoroughbred racing season were also issued to Gulfstream and to Calder. The racing dates in these two racing licenses did not compete with each other, but they did compete with the racing dates in the annual license issued to the Respondent. The effect of the licenses issued by the Division for the 2001-2002 racing season was that the Respondent faced competing dates from Gulfstream from March 17 through April 24, 2002, and then faced competing dates from Calder from April 25 through May 22, 2002. The Respondent learned of the competing date applications filed by Gulfstream and Calder for the 2001-2002 racing season shortly after January 4, 2001. Upon discovering that the competing licenses had been requested, representatives of the Respondent attempted to contact representatives of Gulfstream and Calder to negotiate non-competing dates. Representatives of the Respondent also contacted race tracks outside of Florida to attempt to create a circuit comprised of northern horses that did not traditionally race in South Florida. Representatives of the Respondent did not make a significant effort to contact horsemen to obtain horses for the Respondent’s 2002 race dates. After learning that Gulfstream and Calder were not willing to change their dates, the Respondent’s Chairman of the Board, John J. Brunetti, asked the Respondent’s racing secretary, Sam Abbey, to inquire as to what horses could reasonably be expected to be shipped down to the Respondent’s stables for the 2001-2002 racing season. Mr. Abbey made only a half-hearted effort at such inquiries because it seemed to be pretty much a foregone conclusion that Hialeah was not going to race on its dates in the 2001-2002 season, and the few horsemen contacted by Mr. Abbey expressed no interest in coming to Hialeah for the 2001-2002 racing season. At all times material to this case, Kent H. Stirling has been the executive director of the Florida Horsemen's Benevolent and Protective Association. In that position, Mr. Stirling acts as a liaison between the race tracks and the horsemen, representing the interests of the horsemen. Among other things, Mr. Stirling negotiates purse contracts with the race track owners. Neither Mr. Brunetti nor Mr. Abbey contacted Mr. Sirling regarding the negotiation of a purse contract for the 2001-2002 racing season. In the normal course of events, purse contracts are negotiated six or seven months in advance of the race dates. Mr. Brunetti and the other people involved in the management of Hialeah never made a serious effort to conduct any races during the 2001-2002 racing season. Shortly after learning that they would have to run their races with direct competition that season, it appeared to be a foregone conclusion that Hialeah would not race that season because it did not want to race with direct competition.3 As early as May 22, 2001, Mr. Brunetti advised race fans in the program for Hialeah’s last racing day of the 2000-2001 season: “By now you have heard that Hialeah Park will probably end its racing career with our last racing day, May 22. This is sad, but true.” An early decision to not run any races during the 2001-2002 racing season is also evidenced by the fact that Mr. Brunetti never contacted Mr. Stirling to negotiate a purse contract for the 2001-2002 racing season. Mr. Brunetti’s decision not to race during the 2001- 2002 racing season appears to have been based largely on the notion that, because the 1989-1990 racing season with direct competition on race dates had been a total disaster, racing in 2001-2002 with direct competition would probably also be a disaster, so it was not worth doing.4 During the 2001-2002 and the 2002-2003 thoroughbred racing seasons, by reducing the number of horses per race to 8 or 9, or by reducing the number of races per day to 8 or 9, and by racing 5 days per week, the Respondent could have accommodated a sufficient number of horses in its own stables to have run all of its race dates during those two seasons.5 In the past, the Respondent has had racing programs where it ran only 8 races per day. With the exception of the opening and the closing days, the last year the Respondent ran its authorized dates, it ran 8 races each day. The 2002-2003 thoroughbred racing season On December 20, 2001, the Respondent filed an application for an annual license to conduct pari-mutuel operations at a thoroughbred racing meet during the 2002-2003 thoroughbred racing season. On February 14, 2002, the Division issued the Respondent License Number 1300 for the 2002-2003 thoroughbred racing season. This license required the Respondent to conduct 89 matinee thoroughbred performances from February 1, 2003, through May 14, 2003. On March 28, 2002, the Respondent filed an application to amend License Number 1300 for the 2002-2003 thoroughbred racing season requesting a change of the number of performances and dates. On April 12, 2002, the Division issued the Respondent an amended license, Number 1300-Amendment A, to conduct pari- mutuel operations for the 2002-2003 thoroughbred racing season. The amended license required the Respondent to conduct 73 matinee thoroughbred performances from January 3, 2003, through April 13, 2003. The Respondent did not conduct any of the licensed thoroughbred performances from January 3, 2003, through April 13, 2003. The Respondent’s failure to conduct any of the licensed thoroughbred performances from January 3, 2003, through April 13, 2003, was not the direct result of a fire. The Respondent’s failure to conduct any of the licensed thoroughbred performances from January 3, 2003, through April 13, 2003, was not the direct result of a strike. The Respondent’s failure to conduct any of the licensed thoroughbred performances from January 3, 2003, through April 13, 2003, was not the direct result of a war. The Respondent’s failure to conduct any of the licensed thoroughbred performances from January 3, 2003, through April 13, 2003, was not the direct result of a disaster beyond the ability of the Respondent to control. The circumstances during the 2002-2003 were similar to those of the prior racing season. Racing licenses for the 2002- 2003 thorough bred racing season were again also issued to Gulfstream and to Calder. These two licenses did not compete with each other, but one of them did compete with the license issued to the Respondent. The effect of the combined racing licenses issued by the Division for the 2002-2003 racing season was that the Respondent faced competing dates from Gulfstream from January 3 through April 13, 2003. The Respondent’s racing dates did not compete directly with Calder in 2003. For essentially the same reasons as the season before, Mr. Brunetti made an early decision not to race during the 2002- 2003 thoroughbred racing season. Mr. Brunetti never contacted Mr. Stirling to negotiate a purse contract for the 2002-2003 racing season. Mr. Brunetti never made any serious efforts to attempt to attract horses to race at the Respondent's facility during the 2002-2003 season. The 2003-2004 thoroughbred racing season On January 2, 2003, the Respondent filed its application for an annual license to conduct pari-mutuel operations at a thoroughbred-racing meet during the 2003-2004 thoroughbred racing season. The Respondent’s application that was filed on January 2, 2003, seeks 81 thoroughbred performances from January 3, 2003, through April 24, 2004. On February 14, 2003, the Division issued an Administrative Complaint and Notice of Intent to Deny License based upon Respondent’s failure to conduct thoroughbred performances in the 2001-2002 and 2002-2003 thoroughbred racing seasons. On March 31, 2003, the Respondent filed a request to amend its application for an annual license to conduct pari- mutuel operations at a thoroughbred racing meet during the 2003- 2004 thoroughbred racing season.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued in this case revoking the Respondent’s thoroughbred racing permit and denying the Respondent’s application for a racing license for the 2003- 2004 thoroughbred racing season. DONE AND ENTERED this 30th day of September, 2004, in Tallahassee, Leon County, Florida. S MICHAEL M. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of September, 2004.
The Issue The two issues in this case are whether Respondent, as the trainer of record for two greyhounds; M's Shamrock, that first place finisher in the fourth race on November 7, 2001, and greyhound Lapislazuli, first place finisher in the fourteenth race on November 7, 2001, is legally responsible for the prohibited substance found in each greyhound's urine sample taken immediately after the races, and if so, what penalty should be imposed.
Findings Of Fact At all times relevant and material to this proceeding, Petitioner, Department of Business and Professional Regulation, Division of Pari-mutuel Wagering (Division), created by Subsection 20.165(2)(f), Florida Statutes, is the agency responsible for regulation of the pari-mutuel wagering industry pursuant to Section 550.0251, Florida Statutes. At all times relevant and material to this proceeding, Respondent, Curtiss D. Hughes, was the holder of a pari-mutuel license issued by the Division. Sanford-Orlando Kennel Club is a permit holder authorized to conduct greyhound racing and pari-mutuel wagering in the State of Florida. On November 7, 2001, Respondent was the trainer for a racing greyhound named M's Shamrock that finished first in the fourth race of the evening performance at Sanford-Orlando Kennel Club on that date. Immediately after each race the greyhounds who finish in the win, place and show positions are taken to the "cooling off" area where urine samples are taken by the Kennel's veterinarian assistant and urine sample collector. On November 7, 2001, Brandy Glaspey, veterinarian assistant, collected the urine sample of greyhound, M's Shamrock, and assigned, for identification purposes, number 738627 to M's Shamrock's urine sample. Urine sample 738627 was shipped to the University of Florida Racing Laboratory, Gainesville, Florida, where under the supervision of Dr. Ian R. Tebbett, Ph.D., professor and director of the racing laboratory at the University of Florida and qualified as an expert in forensic toxicology, it tested positive for illegal substance. On December 21, 2001, Respondent was the trainer for a racing greyhound named "Lapislazuli," which finished first in the fourteenth race of the matinee performance at Sanford- Orlando Kennel Club. Immediately after the race a urine sample was collected from Lapislazuli by Brandy Glaspey, veterinarian assistant, and assigned sample number 788210 for identification purposes. Urine sample numbered 788210 was shipped to the University of Florida Racing Laboratory, tested, and found to contain Benzoylecgonine, a metabolite of Cocaine. Cocaine is a Class 1 drug according to the Association of Racing Commissioners International classification system. Respondent testified that he did not administer the drug cocaine to greyhound, Lapislazuli, and he had never been cited for any prior drug violation while holding a Florida occupational license. Respondent's defense to the administrative complaint (Election of Right) alleged a possible breach of the "chain of custody" (from the end of the race, to bringing dogs to the ginny pit, to sample collection, to sample labeling, to sample examination and sample results) and a breach and/or lack of kennel security. There was no material evidence presented of a specific breach of security.
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.
The Issue This is a license discipline case in which the Petitioner seeks to take disciplinary action against a licensee on the basis of allegations in an Administrative Complaint in which the Respondent is charged with two violations of Section 550.2415(1)(a), Florida Statutes.
Findings Of Fact The Petitioner is the State of Florida, Department of Business of Professional Regulation, Division of Pari-Mutuel Wagering (Division) which is created by Section 20.165(2)(f), Florida Statutes. The Respondent, Douglas J. Levkoff, is the holder of an unrestricted U-1 Professional Pari-Mutuel License, License Number 10311836-1081, issued by the Division on or about July 1, 2000. West Flagler is a permitholder authorized to conduct greyhound racing and pari-mutuel wagering in the State of Florida. On September 9, 2000, the Respondent was the trainer for a racing greyhound named "Dodge A Ram." The racing greyhound "Dodge A Ram" finished third in the ninth race of the evening performance of West Flagler on September 9, 2000. Immediately after the race a urine sample was collected from "Dodge A Ram." The urine sample was assigned sample number 651573. The University of Florida Racing Laboratory tested urine sample number 651573, and found it to contain Benzoylecgonine.1 On September 23, 2000, the Respondent was the trainer for a racing greyhound named "Izz Our Patsy." The racing greyhound "Izz Our Patsy" finished first in the sixth race of the matinee performance of West Flagler on September 23, 2000. Immediately after the race a urine sample was collected from "Izz Our Patsy." The urine sample was assigned sample number 652144. The University of Florida Racing Laboratory tested urine sample number 652144, and found it to contain Benzoylecgonine.2 Benzoylecgonine is a metabolite of Cocaine. It is the primary marker of Cocaine in forensic technology. The metabolite Benzoylecgonine is not produced by any drug other than Cocaine. Cocaine is a Class 1 drug according to the Association of Racing Commissioners International classification system. The Respondent is the trainer of record for Sun Coast Kennels, which provides greyhounds for racing to West Flagler Greyhound Track. He is listed as the trainer for Sun Coast Kennels on the kennel personnel roster filed with the Racing Secretary at West Flagler. Sun Coast Kennels is assigned kennel number 17 by West Flagler for identification purposes. Specifically, the Respondent provided the names of "Dodge A Ram" and "Izz Our Patsy" to West Flagler through a listing of available greyhounds and an official schooling, respectively.
Recommendation Based on 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 case suspending the Respondent's license for a period of twenty days, imposing an administrative fine in the total amount of $200.00, and requiring the return of any purse that was received by the Respondent as a result of the two races at issue in this case. DONE AND ENTERED this 12th day of June, 2001, in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of June, 2001.
The Issue Whether Respondents have violated the provisions of section 550.2415(1)(a), Florida Statutes (2010), and if so, what penalty should be imposed?
Findings Of Fact The Division of Pari-Mutual Wagering is the state agency charged with the regulation of pari-mutuel wagering pursuant to section 20.165 and chapter 550, Florida Statutes. At all times material to the allegations in the Administrative Complaints, Respondent Richard Alves held a pari- mutuel wagering greyhound trainer license, number 1053205-1021, issued by Petitioner. At all times material to the allegations in the Administrative Complaints, Respondent Casey Alves was also licensed as a greyhound trainer by Petitioner, having been issued license number 2015868-1021. At all times material hereto, Daytona Beach Kennel Club (DBKC) has been a licensed Florida pari-mutuel facility authorized to conduct pari-mutuel wagering. The Respondents trained greyhounds that were entered to race at DBKC. Cocaine is a local anesthetic and a Class One drug under the Uniform Classification Guidelines for Foreign Substances, as promulgated by the Association of Racing Commissioners, Inc. It is a prohibited medication pursuant to section 550.2415(10(a). At all times material hereto, Respondent Richard Alves was the trainer of record for greyhounds named "Flying Car," "Goldie's Trey," and "Iruska Direct." At all times material hereto, Respondent Casey Alves was the trainer of record for greyhounds named "Kelsos Jalopy," "Wild Mia," "Mani Appeal," and "Fuzzy's Big Shot." Flying Car On April 27, 2010, Flying Car was entered in the third race at DBKC. Flying Car finished sixth in the third race that day. Flying Car was subject to pre-race testing, and prior to the start of the race, urine sample 610687 was collected from Flying Car. The urine sample was processed in accordance with established procedures and forwarded to the lab for analysis. Richard Alves was not present in the testing enclosure when the urine sample was taken, because according to John Decker, DBPR Investigations Supervisor, trainers are not permitted to be on the track when greyhounds are there for the race. Trainers are required to drop the animals off at the track approximately one and a half hours prior to the racing schedule and leave them there until after the dog's race is over. Depending on when the dog races, the trainer has no contact with the racing animal from two to approximately five hours. Richard Alves did not sign the sample collection form for Flying Car, because he was not present when the collection was taken. The University of Florida Racing Laboratory tested urine sample number 610687 and found that it contained Benzoylecgonine, a metabolite of cocaine. Goldie's Trey Respondent Richard Alves was the trainer of record for racing greyhound Goldie's Trey on August 5, 2010. On August 5, 2010, Goldie's Trey was entered in the tenth race at DBKC. Goldie's Trey finished sixth in the tenth race. Goldie's Trey was subject to pre-race testing, and prior to the start of the race, urine sample 603139 was collected from Goldie's Trey. The urine sample was processed in accordance with established procedures and forwarded to the lab for analysis. Richard Alves was not present in the testing enclosure when the urine sample was taken, because trainers of greyhounds are not permitted to be on the track at that time. Richard Alves did not sign the sample collection form for Goldie's Trey, because he was not present when the collection was taken. The University of Florida Racing Laboratory tested urine sample 60319 and found that it contained cocaine, plus Benzoylecgonine and Ecgonine Methyl Ester, metabolites of Cocaine. Iruska Direct Respondent Richard Alves was the trainer of record for the greyhound, Iruska Direct. On November 26, 2010, Iruska Direct was entered in the 15th race at DBKC. Iruska Direct finished sixth in the 15th race. Iruska Direct was subject to pre-race testing, and prior to the start of the race, urine sample 662039 was collected from Iruska Direct and processed in accordance with established procedures and forwarded to the lab for analysis. Richard Alves was not present in the testing enclosure when the urine sample was taken, because trainers for greyhounds are not permitted to be on the track when the animals are there for the race. Richard Alves did not sign the sample collection form for Iruska Direct, because he was not present when the collection was taken. The University of Florida Racing Laboratory tested urine sample number 662039 and found that it contained Benzoylecgonine, a metabolite of cocaine. Kelsos Jalopy Respondent Casey Alves was the trainer of record for the racing greyhound Kelsos Jalopy. On November 10, 2010, Kelsos Jalopy was entered in the seventh race at DBCK. The dog finished second in the seventh race. Kelsos Jalopy was subject to pre-race testing, and prior to the start of the race, urine sample 661859 was collected from Kelsos Jalopy and processed in accordance with the established procedures and forwarded to the lab for analysis. Casey Alves was not present in the testing enclosure when the urine sample was taken, because trainers for greyhounds are not permitted to be on the track when the animals are there for the race. Casey Alves did not sign the sample collection form for Kelsos Jalopy, because he was not present when the collection was taken. The University of Florida Racing Laboratory tested urine sample number 661859 and found that it contained Benzoylecgonine, a metabolite of cocaine. Mani Appeal Respondent Casey Alves was the trainer of record for the racing greyhound Mani Appeal on November 6, 2010. On November 6, 2010, Mani Appeal was entered in the second race at DBKC. Mani Appeal finished fourth. Mani Appeal was subject to pre-race testing, and prior to the start of the race, urine sample 661795 was collected from Mani Appeal and processed in accordance with established procedures and forwarded to the lab for analysis. Casey Alves was not present in the testing enclosure when the urine sample was taken, because greyhounds' trainers are not permitted to be on the track at that time. Casey Alves did not sign the sample collection form for Mani Appeal, because he was not present when the collection was taken. The University of Florida Racing Laboratory tested urine sample number 661795 and found that it contained cocaine, and Benzoylecgonine and Ecgonine Methyl Ester, metabolites for cocaine. Wild Mia Respondent Casey Alves was the trainer of record for the racing greyhound Wild Mia on November 5, 2010. On that day, Wild Mia was entered in the sixth race at DBKC. Wild Mia finished second in the sixth race. Prior to the start of the race, urine sample 661786 was collected from Wild Mia as part of pre-race testing, and processed in accordance with established procedures and forwarded to the lab for analysis. Casey Alves was not present in the testing enclosure when the urine sample was taken, because greyhounds' trainers are not permitted to be on the track at that time. Casey Alves did not sign the sample collection form for Wild Mia, because he was not present when the collection was taken. The University of Florida Racing Laboratory tested urine sample number 661786 and found that it contained cocaine, and Benzoylecgonine and Ecgonine Methyl Ester, metabolites for cocaine. Fuzzy's Big Shot Respondent Casey Alves was the trainer of record for the racing greyhound Fuzzy's Big Shot on November 17, 2010. On that day, Fuzzy's Big Shot was entered in the fifth race at DBKC and finished first. Fuzzy's Big Shot was subject to pre-race testing. Prior to the start of the race, urine sample 661943 was collected from Fuzzy's Big Shot in accordance with established procedures and forwarded to the lab for analysis. As was the case with the other racing greyhounds, Casey Alves was not present in the testing enclosure when the urine sample was taken, because greyhound trainers are not permitted to be on the track at that time. Casey Alves did not sign the sample collection form for Fuzzy's Big Shot, because he was not present when the collection was taken. The University of Florida Racing Laboratory tested urine sample 661943 and found that it contained Benzoylecgonine, a metabolite of cocaine. Respondents steadfastly deny giving cocaine to any of the animals discussed above. Both Casey and Richard Alves' kennels were searched in November of 2010. No drugs or illegal substances were found in the kennels. John Dekker, Investigations Supervisor for the Department for the Department, testified that the procedures were different for pre-race and post-race testing.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED that the Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering enter a final order finding that Respondent Casey Alves violated section 550.2415(1)(a); impose an administrative fine of $2,000; and suspend his occupational license for a period of one year, retroactive to January 31, 2011. It is further recommended that the Department enter a final order finding that Richard Alves violated section 550.2415(1)(a); impose an administrative fine of $1,500 and suspend his occupational license for one year, retroactive to January 31, 2011. DONE AND ENTERED this 19th day of September, 2011, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of September, 2011. COPIES FURNISHED: David Perry, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 40 Tallahassee, Florida 32399-2202 Mitchell G. Wrenn, Esquire 958 Ridgewood Avenue Daytona Beach, Florida 32114 Milton Champion, Director Division of Pari-Mutuel Wagering Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399 Layne Smith, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact Petitioner is an agency of the State of Florida charged with the duty of regulating harness horse racing in the State of Florida. On December 7, 1979, the Chief of the Division's laboratory, Dr. Wayne Duer, reported four findings of impermissible drugs or medications in four horses that raced at a harness meeting that was then being conducted at Pompano Park. Division documentation indicated that the four horses had been trained by three trainers, one of whom was the Respondent. See Division of Pari-Mutuel Wagering v. Charles R. Federman, DOAH Case No. 80-817. As a matter of standard policy, the Director of the Division authorized a search to be conducted of the barn area and vehicles of the three trainers as soon as possible. The reason for a prompt search was to ensure that no further violations would take place as well as to secure any evidence of the illegal administration of the prohibited substances. Upon arrival at the track, Division personnel authorized to conduct the search had Respondent Federman paged to his barn. After a search of the barn revealed no evidence of Prohibited substances, Respondent was asked the location of his car so that it could also be searched. Respondent questioned the authority of Division personnel to search his vehicle, whereupon he was shown a copy of the Division's rules purporting to authorize such a search. Respondent then agreed to allow the search of-his car. Respondent unlocked the front of his car, and upon a search of the interior of the car the following items were found: six insulin syringes; a bottle of Didrex pills, which were shown by analysis to be benzphetamine, a central nervous system stimulant; a packet of zigzag cigarette papers; a hand-rolled cigarette, analyzed by the Broward County Sheriffs Department to contain cannibas or marijuana; one 12-cc syringe filled with clear substance with a needle attached to it; another 12-cc syringe; a 3-cc syringe with needle; a glass smoking apparatus; a plastic shaving kit; a 30-cc vial containing an unknown substance; and ten 2-cc vials of Narcan, analyzed to be naloxome, a narcotic antagonist which removes the effect of narcotics such as heroin and morphine. Respondent was than asked to unlock the trunk of his car. Respondent stated that he did not have the key to the trunk of his car, so he was driven by Division personnel to his motel room to obtain the key. Respondent was unable to find the key in his motel room. Division; personnel then informed Respondent of their intention to impound the car, pending a search of the trunk. Upon researching the interior of the car, Respondent then announced that he had found the key and proceeded to unlock the trunk. Inside the trunk were found three 100-milliliter vials marked "Solo-Delta Cortef", five 100-milliliter vials marked "Solu-Delta-Cortef"; two 3-milliliter vials marked "Solu-Delta Cortef"; two 4-milliliter vials marked "Levophed"; four bottles marked "Tevcodyne" containing 100 tablets each; one 250-cc bottle of sterile water; a box containing fifty 12-cc syringes; and a box containing fifty 3-cc syringes. Respondent did not have written permission from the stewards to possess any of the items taken from his car.
The Issue Whether Florida Administrative Code Rules 61D-6.007 and/or 61D-6.012 constitute an invalid exercise of delegated legislative authority.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing and the entire record in this proceeding, the following Findings of Fact are made: Petitioners, Charles L. McClellan and Natasha Nemeth, hold suspended Pari-Mutuel Wagering Individual Occupational Licenses that authorize them to train racing greyhounds. As licensees, Petitioners are subject to the provisions of chapter 550, Florida Statutes, and the rules promulgated thereunder, specifically chapter 61D-6. The 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 the state. As licensees subject to disciplinary action by the Division, Petitioners have standing to bring this action. Section 550.2415(1)(a), Florida Statutes, prohibits the racing of an animal that has been impermissibly medicated or determined to have a prohibited substance in its system. To enforce section 550.2415, Division employees collect urine samples from racing greyhounds at the track prior to the greyhounds’ race. Fla. Admin. Code R. 61D-6.005(2). These samples are secured and shipped to the University of Florida Racing Laboratory (“UF Lab”) to be tested for impermissible substances. The Division and the UF Lab have entered into a contract pursuant to which the UF Lab conducts the drug testing analysis for all of the urine samples collected from racing animals at pari-mutuel tracks in Florida. At all relevant times, each of the Petitioners was working as the trainer of record for racing greyhounds in the Jacksonville area. The Division collected urine samples from Petitioners’ greyhounds and sent them to the UF Lab for testing. The UF Lab tested the urine samples and reported a total of 24 drug positives for benzoylecgonine (“BZE”) and/or ecgonine methyl ester (“EME”), both of which are metabolites of cocaine. Margaret Wilding, associate director of the UF Lab, testified that the lab currently reports as “positive” any reading for cocaine metabolites at or above 10 nanograms per milliliter (“ng/mL”), the UF Lab’s current limit of quantification. The Division filed Administrative Complaints against Petitioners alleging that they were the trainers of record for racing greyhounds whose urine was collected, tested, and found to contain BZE and/or EME. The proposed penalty would be imposed pursuant to rule 61D-6.012. Those complaints were referred to DOAH and are being held in abeyance pending the outcome of this proceeding.1/ Section 550.2415(1) provides, in relevant part: The racing of an animal that has been impermissibly medicated or determined to have a prohibited substance present is prohibited. It is a violation of this section for a person to impermissibly medicate an animal or for an animal to have a prohibited substance present resulting in a positive test for such medications or substances based on samples taken from the animal before or immediately after the racing of that animal. . . . It is a violation of this section for a race-day specimen to contain a level of a naturally occurring substance which exceeds normal physiological concentrations. The division may solicit input from the Department of Agriculture and Consumer Services and adopt rules that specify normal physiological concentrations of naturally occurring substances in the natural untreated animal and rules that specify acceptable levels of environmental contaminants and trace levels of substances in test samples. The finding of a prohibited substance in a race-day specimen constitutes prima facie evidence that the substance was administered and was carried in the body of the animal while participating in the race. Section 550.2415(2) provides that the Division may take administrative action against an occupational licensee “responsible pursuant to rule of the division for the condition of an animal that has been impermissibly medicated or drugged in violation of this section.” Rule 61D-6.002(1) provides that the trainer of record “shall be responsible for and be the absolute insurer of the condition of the . . . racing greyhounds” that he or she enters in a race.2/ Section 550.2415(7) provides as follows: (7)(a) In order to protect the safety and welfare of racing animals and the integrity of the races in which the animals participate, the division shall adopt rules establishing the conditions of use and maximum concentrations of medications, drugs, and naturally occurring substances identified in the Controlled Therapeutic Medication Schedule, Version 2.1, revised April 17, 2014, adopted by the Association of Racing Commissioners International, Inc. [referenced herein as the ARCI Medication Schedule].[3/] Controlled therapeutic medications include only the specific medications and concentrations allowed in biological samples which have been approved by the Association of Racing Commissioners International, Inc., as controlled therapeutic medications. The division rules must designate the appropriate biological specimens by which the administration of medications, drugs, and naturally occurring substances is monitored and must determine the testing methodologies, including measurement uncertainties, for screening such specimens to confirm the presence of medications, drugs, and naturally occurring substances. The division rules must include a classification system for drugs and substances and a corresponding penalty schedule for violations which incorporates the Uniform Classification Guidelines for Foreign Substances, Version 8.0, revised December 2014, by the Association of Racing Commissioners International, Inc. [referenced herein as the ARCI Guidelines].[4/] The division shall adopt laboratory screening limits approved by the Association of Racing Commissioners International, Inc., for drugs and medications that are not included as controlled therapeutic medications, the presence of which in a sample may result in a violation of this section. The division rules must include conditions for the use of furosemide to treat exercise-induced pulmonary hemorrhage. The division may solicit input from the Department of Agriculture and Consumer Services in adopting the rules required under this subsection. Such rules must be adopted before January 1, 2016. This section does not prohibit the use of vitamins, minerals, or naturally occurring substances so long as none exceeds the normal physiological concentration in a race-day specimen. Section 550.2415 does not define “medication,” “impermissibly medicated,” “prohibited substance,” “drug,” “naturally occurring substance,” “environmental contaminant,” or “laboratory screening limits,” except by reference to publications issued by the Association of Racing Commissioners International, Inc. (“ARCI”). ARCI is the umbrella organization of the official governing bodies for professional horse and greyhound racing in the United States. ARCI sets standards for racing regulation, medication policy, drug testing laboratories, and other matters pertaining to racing for participating jurisdictions. The ARCI “Uniform Classification Guidelines for Foreign Substances and Recommended Penalties and Model Rule” (“ARCI Guidelines”) are intended to assist stewards, hearing officers, and racing commissioners in evaluating the seriousness of alleged violations of medication and prohibited substance rules in racing jurisdictions. The ARCI Guidelines employ a “Drug Classification Scheme” based on pharmacology, drug use patterns, and the appropriateness of a drug for use in the racing animal.5/ Drugs that are known to be potent stimulants or depressants are placed in higher classes, while those that have (or would be expected to have) little effect on the outcome of a race are placed in lower classes. Drugs that are clearly not intended for use in racing animals are placed in higher classes, particularly if they may affect the outcome of a race. The ARCI Guidelines do not set screening limits or testing thresholds for any of the listed substances. The ARCI Guidelines classify cocaine and/or its metabolites as “Class 1 drugs” which are defined as: [S]timulant and depressant drugs that have the highest potential to affect performance and that have no generally accepted medical use in the racing horse. Many of these agents are Drug Enforcement Agency (DEA) schedule II substances. These include the following drugs and their metabolites: Opiates, opium derivatives, synthetic opioids, and psychoactive drugs, amphetamines and amphetamine-like drugs as well as related drugs. . . . The ARCI Guidelines state that Class 1 drugs “have no generally accepted medical use in the racing horse and their pharmacologic potential for altering the performance of a racing horse is very high.” Rule 61D-6.007, titled “Permitted Medications for Racing Greyhounds,” provides as follows: The following medications are permitted to be administered to racing greyhounds in the dosages and under the conditions listed below: The administration of testosterone or testosterone-like substances, when used for the control of estrus in female racing greyhounds, is permitted, subject to the following conditions: Track veterinarians may administer injectable testosterone on the grounds of the permitholder to female racing greyhounds for the control of estrus. Kennel owners may use their regular Florida licensed veterinarian or may enter into a collective agreement for the services of a Florida licensed veterinarian to administer injectable testosterone to female racing greyhounds for the control of estrus. The administration of oral testosterone shall be permitted provided it is validly prescribed and properly labeled. Veterinarians that administer injectable or oral testosterone shall be responsible for maintaining security, inventory, and a retrievable records/log in accordance with the Drug Enforcement Agency (DEA) regulations pertaining to a Schedule III drug under the federal Controlled Substances Act and shall be accountable for all syringes and needles used therewith and their disposal in accordance with approved biomedical hazardous waste methods. Sulfa drug(s) is/are permitted to be administered to a racing greyhound providing: The racing greyhound is under the care of a veterinarian currently licensed pursuant to Chapters 474 and 550, Florida Statutes; and The sulfa drug(s) is/are prescribed by a veterinarian currently licensed pursuant to Chapters 474 and 550, Florida Statutes; and The sulfa drug(s) is/are not administered within 24 hours prior to the officially scheduled post time of the race. The following permitted medications shall not be reported by the racing laboratory to the division as a violation of Section 550.2415, F.S.: The detection of caffeine at a urinary concentration less than or equal to 200 nanograms per milliliter; The detection of theophylline and theobromine at a urinary concentration less than or equal to 400 nanograms per milliliter; The detection of procaine at a urinary concentration less than or equal to 2 micrograms per milliliter; and The detection of flunixin at a urinary concentration less than or equal to 250 nanograms per milliliter. All prescription medication, regardless of method of administration, shall be safeguarded under lock and key when not being actively administered. Rule 61D-6.012, titled “Penalty Guidelines for Class I-V Drug Violations in Greyhounds,” provides as follows: The penalties in this rule shall be imposed when the Division finds that the following substances have been identified by the state laboratory in a urine sample or blood sample collected from a greyhound participating in a pari-mutuel event: (a) Any drug or medication that: Is not approved for veterinary use in the United States by the Food and Drug Administration; Cannot be detected by the state laboratory in a urine or blood sample unless the medication was administered within 24 hours of the race; or Is detected in urine or blood concentrations that indicate a level of dosage that would constitute a threat to the health and safety of the greyhound. First violation of this chapter Any subsequent violation of this chapter $1,000 to $2,500 fine and suspension of license zero to one year, or revocation of license; $2,500 to $5,000 fine and revocation of license. The penalty for any medication or drug which is not described in subsection (1) above shall be based upon the classification of the medication or drug found in the Uniform Classification Guidelines for Foreign Substances, revised December 2014, as promulgated by the Association of Racing Commissioners International, Inc., which is hereby incorporated and adopted by reference, https://www.flrules.org/Gateway/ reference.asp?No=Ref-06400. A copy of this document may be obtained at www.myfloridalicense.com/dbpr/pmw or by contacting the Department of Business and Professional Regulation, 2601 Blair Stone Road, Tallahassee, Florida 32399. The penalty schedule shall be as follows: Class I substances: First violation of this chapter $500 to $1,000 fine and suspension of license zero to one year, or revocation of license; Any subsequent violation of this chapter $1,000 to $5,000 fine and suspension of license no less than one year, or revocation of license. Class II substances: First violation of this chapter $100 to $1,000 fine and suspension of license zero to 30 days; Second violation of this chapter $250 to $1,000 fine and suspension of license no less than 30 days, or revocation of license; Third violation or any subsequent violation of this chapter $500 to $1,000 fine and suspension of license no less than 60 days, or revocation of license. Class III substances: First violation of this chapter $50 to $500 fine; Second violation of this chapter Third violation or any subsequent violation of this chapter $150 to $750 fine and suspension of license zero to 30 days; $250 to $1,000 fine and suspension of license zero to 60 days. Class IV or V substances: First violation of this chapter $50 to $250 fine; Second violation of this chapter Third or subsequent violation of this chapter $100 to $500 fine; $200 to $1,000 fine and suspension of license zero to 30 days. The Division may consider mitigation or aggravation to deviate from these penalty guidelines. Circumstances which may be considered for the purposes of mitigation or aggravation of any penalty shall include the following: The impact of the offense to the integrity of the pari-mutuel industry. The danger to the public and/or racing animals. The number of repetitions of offenses. The time periods between offenses. The number of complaints filed against the licensee or permitholder, which have resulted in prior discipline. The length of time the licensee or permitholder has practiced. The deterrent effect of the penalty imposed. Any efforts at rehabilitation. Any other mitigating or aggravating circumstances. Absent mitigating circumstances, the division judge or the division shall order the return of any purse, prize, or award from any pari-mutuel event for redistribution when a postive test for a drug or medication described in paragraphs (1)(a), (1)(b), (1)(c), (2)(a), or (2)(b) is reported by the state laboratory and confirmed through the hearing process. The judges or the division shall specify in writing the reasons for requiring the return of any purse, prize, or award for redistribution when the positive test of a drug or medication reported by the state laboratory is not described in paragraphs (1)(a), (1)(b), (1)(c), (2)(a), or (2)(b) of this rule. Nothing in this rule modifies the provisions of Rule 61D-6.008 or 61D-3.002, F.A.C., or rules promulgated under Section 550.2415, F.S. Count II of the Petition alleges that the challenged rules arbitrarily and capriciously fail to address environmental contamination of racing greyhound urine samples. It also alleges that the rules deprive racing greyhound trainers of due process, are vague in that they fail to establish adequate standards for agency decisions, and vest unbridled discretion in the agency. Finally, it alleges that the rules exceed and contravene the Division’s delegated legislative authority. Petitioners point out that section 550.2415(1)(b) acknowledges the presence of “naturally occurring substances” and “environmental contaminants” in an animal. The statute authorizes the Division to adopt rules that specify “normal physiological concentrations” of naturally occurring substances and that specify acceptable levels of environmental contaminants. Petitioners also observe that section 550.2415(7)(c) requires the Division to adopt rules that include a classification system for “drugs and substances” and a corresponding penalty schedule for violations in accordance with the ARCI Guidelines. The Division is also required to adopt ARCI-approved “laboratory screening limits” for drugs and medications that are not classified as controlled therapeutic medications. Petitioners note that, despite the statutory language, rule 61D-6.007 provides screening limits for only a few foreign substances. The rule addresses permitted administrations of testosterone and sulfa drugs to racing greyhounds and provides screening limits for caffeine, theophylline, procaine, and flunixin. Petitioners contend that this list is inconsistent with the ARCI Medication Schedule, which lists 26 medications and their recommended screening limits for the urine samples of racing animals. Petitioners further note that rule 61D-6.012 establishes a penalty schedule that incorporates the ARCI Guidelines without regard to the amount of the substance found in the urine sample. The Division counters that its rule follows the ARCI Guidelines, which do not contain laboratory screening limits (or thresholds) for cocaine, BZE, or EME. Cocaine, BZE, and EME are also not identified within the ARCI Medication Schedule. The Division reads the exclusions of laboratory screening limits for cocaine as evidencing ARCI’s “zero tolerance policy” for the presence of cocaine and its metabolites in the race-day sample of a racing animal. Rule 61D-6.012 incorporates the ARCI Guidelines and therefore the same “zero tolerance policy” for the presence of cocaine, BZE, and EME that the Division presumes, both the ARCI Guidelines and ARCI Medication Schedule recommend. However, the only laboratory screening limits found in any of the ARCI materials are those related to the 26 “controlled therapeutic medications” listed in the ARCI Medication Schedule. The ARCI Guidelines list approximately 750 “drugs/substances” and contain screening limits for none of them. Thus, the Division’s point about “zero tolerance” for cocaine based on the ARCI documents could be made as to several hundred other drugs/substances, including several items for which the Division’s own rule 6D-6.007(3) establishes screening limits well above zero.6/ The ARCI Schedule recommends that cocaine, almost alone among Class 1 drugs,7/ be given a “Class B” penalty rather than the typical “Class A” penalty. The ARCI-recommended Class B penalty for a licensed trainer’s first offense is a minimum 15-day suspension and $500 fine, absent mitigating circumstances. The presence of aggravating factors can increase the penalty to a 60-day suspension and a fine of $1,000. In contrast, the ARCI-recommended Class A penalty for a first offense is a minimum one-year suspension and minimum fine of $10,000. Aggravating factors can increase the Class A penalty to a three-year suspension and a fine of $25,000. The lesser recommended penalty indicates that if ARCI has singled out cocaine, it has been for more lenient treatment, and not for harsher treatment than for other Class 1 drugs. Dr. Cynthia Cole is a veterinarian and pharmacologist, who acted as the director of the UF Lab from 2003 to 2006. Dr. Cole testified that BZE and EME are “naturally occurring substances,” in the strict sense that they are metabolites of cocaine and would be naturally produced by any animal that has ingested cocaine. Dr. Cole also conceded that levels of cocaine below 100 (ng/mL) would be very unlikely to have any effect on a racing animal’s performance, and that such low levels could be the result of environmental contamination. Of the 24 positive tests cited against Petitioners, the highest concentration of a cocaine metabolite was 36.5 ng/mL. Even that appeared to be an outlier, as most of the concentrations were in the range of 10 to 15 ng/mL. Dr. Thomas Tobin, a veterinarian, pharmacologist, and toxicologist, testified that trace amounts of cocaine are present virtually everywhere in North American human society. Dr. Tobin stated that less than 50 ng/mL of urinary BZE is indicative of nothing more than that the subject lives in North America. Dr. Tobin testified that a very small concentration of cocaine metabolites in the urine is likely attributable to environmental contamination. Dr. Tobin stated that when the concentration is below pharmacological significance, it should not be called a positive. He noted that in human drug testing, a sample is first screened at 150 ng/mL and then confirmed at 100 ng/mL, at which point it is reported as positive. Dr. Tobin could think of no scientific reason why there should be a regulatory reporting threshold for humans but not for racing animals. Cocaine is rapidly absorbed and metabolized, and may enter a dog’s body through the mouth, the mucous membranes, or through the skin. Dr. Tobin opined that the very small concentrations of cocaine metabolites found in Petitioners’ greyhounds suggest exposure to the drug via touch, soon before the urine sample was taken. He found this significant because of the manner in which urine is collected from racing greyhounds in Florida. Shortly before the first race begins for each 15-race card, greyhound trainers customarily arrive at the track detention facility with their greyhounds for weigh-in. The trainers then leave their greyhounds in the care of track personnel. Between weigh-in and the end of a greyhound's race, the dog has no physical contact with its trainer, while it has extensive contact with track personnel. After weigh-in, and approximately 30 minutes before the first race begins, track personnel identified as "lead- outs," take the greyhounds into a locked area called a "ginny pit." Track personnel supervise the dogs in this area; trainers and owners are not allowed to be present. The urine sampling of a racing greyhound takes place just prior to the greyhound's scheduled race. Depending on when a greyhound is scheduled to race, its urine may be sampled several hours after its last contact with its trainer. Veterinarian assistants employed by the Division catch racing greyhounds' urine during the sampling process. The Division does not drug-test its veterinarian assistants. David Tiffany is the quality assurance manager for the UF Lab. Mr. Tiffany testified in agreement with Ms. Wilding that the UF Lab’s current limit of quantification for cocaine, also called a “decision limit” or “cut-off,” is 10 ng/mL. Mr. Tiffany uses the term “cut-off” to describe the detection level at which the lab has informally decided not to expend the effort required to establish the quantity of a substance at a lower level. Mr. Tiffany stated that the UF Lab is able to detect cocaine down to 5 ng/mL, and that this “limit of detection”--the smallest concentration of a substance that can be confidently identified by a testing methodology--is one factor in determining the limit of quantification. He testified that several factors influence the ability to confidently see a drug all the way down to its limit of detection, including “noise” (other compounds) in the sample, and whether the testing instrument is in need of service and recalibration. Mr. Tiffany wrote the UF Lab’s procedures for determining measurement uncertainty. He explained that multiple measurements of an item yield small variations. The degree of that variation is the “precision of measurement.” The lab looks at various factors that affect the variation and sets a range of measurement uncertainty, i.e., the probability that the measurement for a certain substance will fall between an upper and a lower limit. Mr. Tiffany stated that the common level of a range is a 95-percent probability that the value of the sample is within the range. The standard format is to state the concentration of the substance, plus or minus the value of the range of measurement uncertainty. Mr. Tiffany testified that the UF Lab calculates and attaches to its report a measurement of uncertainty only when dealing with a “threshold drug,” meaning a drug for which a statute or rule sets an allowable level. For such drugs, the lab must be certain that the entire range of variation sits above the threshold. If the value of the measurement minus the measurement of uncertainty still exceeds the threshold, the lab calls it a positive finding. The UF Lab does not report a measurement of uncertainty for cocaine and its metabolites because no rule or statute sets a threshold for cocaine. Mr. Tiffany stated that a measurement of uncertainty is not needed to detect the mere presence of a substance, as opposed to making a precise measurement of the quantity of that substance. The lab can determine that something is present without giving it a number. Mr. Tiffany testified that the UF Lab used to simply report the qualitative results of its tests for cocaine, but that the Division then would ask whether there was a lot or a little cocaine in the sample. As an aid to the Division, the lab began reporting quantitative results for cocaine, with the proviso that the reported amounts were estimates. At some point, the lab began restricting its “positive” reports for cocaine metabolites to those results that met or exceeded the lab’s limit of quantification, 10 ng/mL. Ms. Wilding and Mr. Tiffany resisted calling this 10 ng/mL line a “threshold” because a “threshold” is an allowable level of a substance established by statute or rule. However, as a practical matter, the Division has allowed the limit of quantification for cocaine metabolites to act as a threshold for taking action against a licensee. If the Division’s policy were actually “zero tolerance,” it would require the UF Lab to report cocaine down to its limit of detection and would discipline licensees accordingly. In either event, the laboratory screening limit should be reflected in the Division’s rules, as required by section 550.2415(7)(c). It was never explained at the hearing how the UF Lab knows which drugs are “threshold” drugs for purposes of reporting positive results to the Division. The Division’s annual report includes a listing of positive drug tests for the previous fiscal year. Apart from cocaine and its metabolites, the drugs found in the positive drug tests for fiscal years 2014-2015 and 2015-2016 were: acepromazine metabolite; methylprednisolone; amphetamine; betamethasone; caffeine; theophylline; theobromine; clenbuterol; dexamethasone; methocarbamol; phenylbutazone; 5-hydroxy dantrolene; despropionyl fentanyl; xylazine; dextrorphan; dimethyl sulfoxide; firocoxib; flunixin; ketoprofen; glycopyrrolate; ibuprofen; isoflupredone; methylprednisolone; triamcinolone acetonide; ketoprofen; lidocaine; 3-hydroxy lidocaine; mepivacaine; 3-hydroxy mepivacaine; omeprazole sulfide; oxycodone; oxymorphone; procaine; testosterone; nandrolone; boldenone; carprofen; isoxsuprine; naproxen; and zipaterol. Apart from caffeine, theophylline, theobromine, procaine, and flunixin, the Division’s rules (and the record of this proceeding) are silent as to the laboratory screening limits for these drugs. There appear to be three possibilities: the Division informally provided the UF Lab with a screening limit for these drugs; the Division instructed the UF Lab to report positive tests down to the limit of detection, i.e., “zero tolerance,” for these drugs; or the UF Lab was allowed to set its own “screening limit” by way of its limit of quantification, as Mr. Tiffany testified has been done for cocaine. However, the Division offered no evidence in support of any of the possibilities. Mr. Tiffany testified that measurements of uncertainty vary between labs and can change within a single lab upon review of the methodologies and current equipment. Mr. Tiffany testified that there is no technical reason why the UF Lab could not report measurement uncertainties for BZE and EME if the Division requested that information. He believed that adopting the current UF Lab’s measurement of uncertainty in a Division rule would become a “false restriction on the data,” as it would become a limitation on the lab’s ability to lower the uncertainty measurement with new equipment and techniques.8/ Several jurisdictions have established screening limits for BZE in racehorses. New Mexico, Ohio, Illinois, and Oklahoma prohibit disciplinary action unless the test sample results exceed 150 ng/mL. The state of Washington has set the screening limit at 50 ng/mL. Illinois and Oklahoma refer to BZE under the heading “environmental contaminants.” New Mexico references BZE under the heading “environmental contaminants and substances of human use.” Washington lists BZE under the heading “environmental substances.” Petitioners contend that the Division has effectively delegated to the UF Lab the setting of a threshold or screening limit for cocaine and its metabolites. The UF Lab’s limit of quantification operates as the screening limit for disciplinary action taken by the Division, and is subject to change whenever the lab alters its equipment or methods. In support of their contention, Petitioners point out that in 2014, the UF Lab employed a more sensitive testing technology than it currently uses, which resulted in the prosecution of a greyhound trainer whose dog’s urine yielded only 3.7 ng/mL of BZE. Petitioners argue that this 2014 case demonstrates that the lab’s limit of quantification serves as a de facto substitute for the screening limits that section 550.2415(7)(c) requires the Division to adopt by rule.9/ The evidence fully supports Petitioners’ argument on this point. In summary, section 550.2415(7) places several mandatory rulemaking requirements on the Division. Paragraph (a) expressly directs the Division to adopt rules establishing the conditions of use and maximum concentrations of “medications, drugs, and naturally occurring substances” identified in the ARCI Medication Schedule, to ensure “the safety and welfare of racing animals.” “Controlled therapeutic medications” are limited to those medications and allowable concentrations as identified and approved by ARCI. The Division has not implemented this directive as to greyhounds. Rule 61D-6.007(3) prescribes allowable dosages for caffeine, theophylline, theobromine, procaine, and flunixin, of which only flunixin is listed in the ARCI Medication Schedule. The ARCI Medication Schedule lists dosage thresholds, withdrawal guidelines and dosing specifications for 26 “controlled therapeutic medications.” The ARCI Guidelines include caffeine (Drug Class 2, Penalty Class B), theophylline (Drug Class 3, Penalty Class B), theobromine (Drug Class 4, Penalty Class B), and procaine (Drug Class 3, Penalty Class B).10/ In its Proposed Final Order, the Division argues, for the first time, that the ARCI Medication Schedule does not apply to greyhounds at all. It concedes that section 550.2415(7)(a) mandates the adoption of rules establishing thresholds for medications, drugs, and naturally occurring substances identified in the ARCI Medication Schedule, but argues that this provision applies only to racehorses. The Division has adopted rule 61D-6.008, applying the ARCI Medication Schedule to horses, but has not done so for greyhounds.11/ The Division’s assertion is not supported by the statute. In fact, section 550.2415(7)(a) is not limited to horses but expressly states that it applies to “racing animals.” The only textual support of any kind the Division offers is the assertion that the full title of the ARCI Medication Schedule is “ARCI Controlled Therapeutic Medication Schedule for Horses-- Version 2.1.” The copy of the ARCI Medication Schedule entered into evidence in this proceeding does not contain the words “for Horses,” or any language excluding greyhounds. Even if the ARCI Medication Schedule were limited to horses, the same point could be made as to the ARCI Guidelines, the classification definitions of which describe the impact of the listed drugs on “the racing horse.” The Division makes much of the fact that the word “greyhound” does not even appear in the ARCI Medication Schedule; neither does the word occur in the ARCI Guidelines. The record evidence in no way supports the Division’s contention that the statute’s provisions as to the ARCI Medication Schedule are inapplicable to greyhounds. Section 550.2415(7)(b) expressly directs the Division to adopt rules that designate the appropriate biological specimens for testing and that “determine the testing methodologies, including measurement uncertainties, for screening such specimens” for medications, drugs, and naturally occurring substances. (emphasis added). The Division has not implemented this directive. As set forth in the above Findings of Fact, the Division has left it to the UF Lab to establish measurement uncertainties. The UF Lab determines measurement uncertainties only for threshold substances, and these measurement uncertainties change over time. While the Division offered a cogent and reasonable explanation as to why it makes sense for the UF Lab to set measurement uncertainties, the statute does not give the Division discretion to entirely delegate this responsibility to another entity. The Division’s rules must determine the testing methodologies, including measurement uncertainties, not hand off that determination to a laboratory. The Division’s rules must make this determination for all “medications, drugs, and naturally occurring substances” that are screened by the lab, not only those substances it and/or the UF Lab deem “threshold” substances.12/ Section 550.2415(7)(c) expressly directs the Division to adopt rules that include a classification system for “drugs and substances” and a corresponding penalty schedule for violations. The classification system and penalty schedules must incorporate the ARCI Guidelines. The Division has implemented this requirement in rule 61D-6.012(2), which expressly adopts the classifications of the ARCI Guidelines and sets forth penalties based on the ARCI classifications. However, section 550.2415(7)(c) also expressly directs the Division to adopt rules that include laboratory screening limits approved by ARCI for drugs and medications that are not included in ARCI’s Medication Schedule as “controlled therapeutic medications.” The statute states that the presence of such drugs and medications in a sample “may result in a violation of this section.” The Division has not implemented this requirement. The ARCI Guidelines do not approve laboratory screening limits for drugs and medications other than “controlled therapeutic medications.” The Division has argued that the lack of screening limits for cocaine and its metabolites is evidence that ARCI supports a “zero tolerance” policy for cocaine. However, the same argument would apply to any of several hundred substances listed in the ARCI Guidelines that are not also listed as “controlled therapeutic medications” in the ARCI Medication Schedule. The Division has offered no principled distinction between cocaine and, for example, caffeine. Caffeine also appears in the ARCI Guidelines, with the same recommended penalty as cocaine. The ARCI Guidelines prescribe no screening limit for caffeine. Caffeine is not a controlled therapeutic medication. By the Division’s stated rationale, caffeine should be a “zero tolerance” substance. However, rule 61D-6.007(3)(a) allows up to 200 ng/mL of caffeine in the urine before the lab must report the finding to the Division. It could be objected that caffeine is merely a Class 2 drug, unlike cocaine, which is Class 1 and has no generally accepted medical use in racing animals. However, rule 61D- 6.012(2) provides penalties for substances all the way down to Class 5. If there were a “zero tolerance” policy for caffeine, a prosecution for a Class 2 substance violation could result in a $1,000 fine and a 30-day suspension. Fla. Admin. Code R. 61D- 6.012(2)(b). The point remains that neither the Division’s rule nor the Division’s arguments at hearing articulate a principled distinction as to which substances the Division will, in practice,13/ treat with a “zero tolerance” policy. The literal terms of the laboratory screening limits portion of section 550.2415(7)(c) require the Division to obtain ARCI’s approval of a list of laboratory screening limits for drugs and medications that are not included as controlled therapeutic medications. Despite the mandatory language of the statute, nothing in the record suggests that the Division has made any effort to implement this provision, either by submitting a list to ARCI or even by making an inquiry to ARCI as to whether it would consider such a submission. Rather, the Division has passively chosen to interpret the lack of ARCI- approved laboratory screening limits as endorsing a “zero tolerance” policy for all ARCI Guideline substances not included in the ARCI Medication Schedule. It is patently arbitrary for the Division to use the lack of screening limits as an opportunity to pick cocaine from among 700-plus substances in the ARCI Guidelines for “zero tolerance” treatment. Some distinguishing principle must be articulated to separate cocaine from the other substances in the ARCI Guidelines, given the lack of evidence that the Division in fact treats all drugs and substances that are not on the ARCI Medication Schedule with a “zero tolerance” policy. The Division could eliminate this ambiguity by following its statutory directive to adopt a rule setting laboratory screening limits for drugs and medications that are not included as controlled therapeutic medications. Section 550.2415(1) includes some permissive rulemaking actions that the Division may choose to take. Paragraph (1)(b) provides that the Division may solicit input from the Department of Agriculture and Consumer Services and may adopt rules that specify “normal physiological concentrations of naturally occurring substances in the natural untreated animal.” The Division also may adopt rules that specify acceptable levels of environmental contaminants and trace levels of substances in test samples. Several other states have chosen to treat BZE as an environmental contaminant and to set acceptable concentration levels for the drug in the system of a racing animal. This practice appears sensible and consistent with the accepted science, but the statute does not require the Division to follow it. However, the Division fails to adopt rules at its own enforcement peril.14/ In its Proposed Final Order, the Division uses paragraph (1)(b) to defend its failure to adopt thresholds for cocaine and its metabolites, arguing that the statute is permissive as to adopting rules that establish screening limits for environmental contaminants such as cocaine. Throughout the hearing, the Division resisted the notion that BZE or EME are environmental contaminants, and thus its late embrace of that categorization is somewhat disingenuous. In any event, the Division fails to read paragraph (1)(b) in its entirety. The first sentence provides: “It is a violation of this section for a race-day specimen to contain a level of a naturally occurring substance which exceeds normal physiological concentrations.” To find a violation, the Division must first determine what level of a naturally occurring substance is excessive. Due process for the licensee requires no less. The Division fails to explain how it can enforce the quoted prohibition without a rule that specifies “acceptable levels of environmental contaminants and trace levels of substances in test samples.” However, the permissive language of the statute gives the Division discretion to avoid such an explanation until it attempts to enforce the prohibition. A rule is not required. Finally, the Division attempts to justify its failure to establish screening limits by reference to section 550.2415(13), which provides: The division may implement by rule medication levels for racing greyhounds recommended by the University of Florida College of Veterinary Medicine developed pursuant to an agreement between the Division of Pari-mutuel Wagering and the University of Florida College of Veterinary Medicine. The University of Florida College of Veterinary Medicine may provide written notification to the division that it has completed research or review on a particular drug pursuant to the agreement and when the College of Veterinary Medicine has completed a final report of its findings, conclusions, and recommendations to the division. The Division argues that subsection (13) means that any medication levels adopted in the Division’s rules must be based on a recommendation from the UF Lab, and that the UF Lab has not recommended a threshold for cocaine or its metabolites. The Division argues that it would be an invalid exercise of delegated legislative authority to adopt any threshold for racing greyhounds without a recommendation from the UF Lab. This argument is not well taken. Subsection (13) does not refer narrowly to the UF Lab but to the University of Florida College of Veterinary Medicine (“College”). The statute contemplates a contract between the Division and the College under which the College would use its medical knowledge to recommend “medication levels for racing greyhounds.” There is at least an implication that a medical opinion beyond the laboratory testing expertise of the UF Lab is contemplated. Also, subsection (13) is entirely permissive. It allows the Division to implement by rule medication levels recommended by the College, should the Division and the College choose to enter into a contract for that purpose. If the Division’s argument were accepted, then it could evade any responsibility for adopting rules by the simple expedient of never entering a contract with the College. In fact, nothing in the language of subsection (13) exempts the Division from the mandatory rulemaking requirements of subsection (7).
