05-004358PL Department Of Business And Professional Regulation, Division Of Pari-Mutuel Wagering vs. Srdan Saric Status: Closed Recommended Order on Friday, April 14, 2006.

Summary: Respondent was found to have two syringes in his tack box. Two horses tested positive for Flunixin, a Class IV drug, and phenylbutazone in excessive amounts.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF PARI - MUTUEL WAGERING, )

)

Petitioner, )

)

vs. ) Case No. 05 - 4358PL

)

SRDAN SARIC, )

)

R espondent. )

___________________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case

before Larry J. Sartin, an Administrative Law Judge of the

Division of Administrative Hearings, on February 8, 2006, by

v id eo t eleconference between sites in Tallahass ee and Fort

Lauderdale, Florida .

APPEARANCES

For Petitione r: S. Thomas Peavey Hoffer

Ralf E. Michels

Assistant s General Counsel

Department of B usiness and

Professional Regulation

Division of Pari - Mutuel Wagering

Northwood Centre , Suite 60

1940 North Monroe Street

Tallahassee, Florida 32399 - 2202

For R espondent: Rose H. Robbins, Esquire

One Boca Place

2265 Glades Road

Suite 324 Atrium

Boca Raton, Florida 33431

STATEMENT OF 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

Adminis trative Complaint filed with the Department of Business

and Professional Regu lation in D BPR Case No s . 2005 042972,

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.

PRELIMINARY STATEMENT

On October 14, 2005, Petitioner filed a six - count

Administrative Complaint against Srdan Saric, an individual

licensed by Petitioner to train race horses in Florida. On

November 8, 2005, Mr. Saric executed an Election of Rights form

disputing the material allegations o f the Administrative

Complaint and requesting a formal administrative hearing before

the Division of Administrative Hearings. The Election of Rights

form and an Answer to the Administrative Complaint were filed by

counsel for Mr. Saric with Petitioner on or about November 14,

2006 .

On November 30, 2006, Petitioner filed the Administrative

Complaint and Mr. Saric's Answer thereto and his request for

hearing with the Division of Administrative Hearings with a

request that an administrative law judge be assig ned to conduct

proceedings pursuant to Section 120.57(1), Florida Statutes

(2005). The matter was designated DOAH Case Number 05 - 4 3 58PL

and was assigned to the undersigned.

The final hearing was scheduled for February 8, 2006, by

Notice of Hearing by Vide o Teleconference entered December 15,

2005.

On January 24, 2006, Petitioner filed Petitioner's

Unopposed Motion for Leave to Amend Administrative Complaint

seeking to correct scrivener's errors in paragraphs 28 and 32 of

the Administrative Comp laint. On J anuary 30, 2006, an Order

Granting Motion to Amend was entered. That same day , Mr. Saric

filed an A nswer to A mended C omplaint and A ffirmative Defenses.

On February 6, 2006, a Pre - Hearing Stipulation was filed by

the parties. The Pre - Hearing Stipulation c ontains, in relevant

part, stipulated facts. Those facts that have been deemed

relevant to this matter have been included in this Recommended

Order.

At the final hearing, Petitioner presente d the testimony of

Rene Riera, the " stage steward " at Pompano Par k Racing harness

racing facility ; Cynthia Cole, D.V.M., director and associate

professor at the University of Florida Racing Laboratory ; and

Jill Ray Blackman, a licensing administrator for Petitioner.

Dr. Cole was accepted as an expert in the areas of ve terinary

pharmacology, drug testing, and veterinary medicine. Petitioner

also offered and had admitted Petitioner's Exhibits P - 1 through

P - 4.

Respondent testified on his own behalf and presented the

testimony of Richard Masters, a security supervisor at P ompano

Park Racing; Anna Jopilovic, a groom at Pompano Park Racing ;

Michael Snyder, an owner and trainer of harness race horses ;

John Beatris, the security director at Pompano Park Racing ; Luis

Rivera, an investigator for Petitioner ; Jeremy Glowacki, a

for mer employee of Mr. Saric and others at Pompano Park Racing;

and Jeanette Glowacki, the owner of Youngbro Clever and Swift

Courier, the two horses at issue in this case , and the mother of

Jeremy Glowacki . Respondent also offered the deposition

testimony o f Anne Santoriello, a groom at Pompano Park Racing;

and Zoran Saric, a harness race horse trainer at Pompano Park

Racing and Mr. Saric's brother. Respondent also offered and had

admitted four exhibits, Respondent's Exhibits R - 1 through R - 4.

The transcrip ts of the deposition testimony of Ms. Santoriello

and Zoran Saric have been marked as Respondent's Exhibits R - 5

and R - 6, respectively.

A Notice of Filing of Transcript was issued March 13, 2006,

informing the parties that the Transcript of the final hearin g

and the T ranscripts of the deposition testimony of Anne

Santoriello and Zoran Saric had been filed on February 23, 2006,

and March 9, 2006, respectively. The parties were informed ,

therefore , that they had until March 29, 2006, to file proposed

recommen ded orders.

Petitioner filed a Proposed Recommended Order on March 29,

2006. Mr. Saric filed a Proposed Recommended Order after

5:00 p.m., March 29, 2006, but before 8:00 a.m., March 30, 2006.

Mr. Saric's Proposed Recommended Order was, therefore, treate d

as having been filed at 8:00 a.m., March 30, 2006. On March 31,

2006, Petitioner filed Petitioner's Motion to S trike

Respondent's Proposed Recommended Order as U ntimely. Having

found no prejudice to Petitioner , the motion was denied. The

Proposed Reco mmended Orders of the parties have been fully

considered in rendering this Recommended Order.

All references in this Recommended Order to Florida

Statutes and Florida Administrative Code rules are to the 2005

version, unless otherwise noted.

FINDINGS OF FA CT

A. The Parties .

1. 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 Statute s, and

charged with the responsibility for the regulation of the pari -

mutuel wagering industry pursuant to Section 550.0251, Florida

Statutes.

2. Respondent, Srdan Saric, is, and was at the times

material t o this matter, the holder of a pari - mutuel licens e,

number 2016930 - 1021, issued by the Division.

3. 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 .

4. 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 .

5 . 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.

B. T he Events of July 27, 2005 .

6 . Youngbro Clever and Swift Courier were both scheduled

to race at Pompano P ark 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.

7 . The fourth race was scheduled to begin at approximately

8:15 to 8:30 p.m.

8 . Both horse s 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.

9 . Tack boxes, where equip ment was stored, were located at

Barn C adjacent to the wall just outside the horse stalls .

Those l ocated in the area where Mr. Saric's horses were housed

were considered to be within areas of Barn C which he occupi ed

or had the right to occupy. The tack boxes are part of the

premises within the grounds of a racing permitholder where

racing animals wer e lodged or kept and which Mr. Saric occupied

or had the right to occupy.

10 . 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.

11. Based upon Mr. Glowacki's report , Pompano Park

s ecurity searched the tack box and found a 35 cc hypode rmic

syringe with needle attached and a 12 cc hypodermic syringe with

needle attached .

12 . As a result of the discovery of the syringes, Youngbro

Clever and Swift Courier were immediately scratc hed from their

scheduled races and were sent to the State Vet erinarian for drug

t esting. Mr. Saric was also suspended from Pompano Park and

remained so at the time of the final hearing of this matter.

13 . 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.

14 . 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 re ferred to

as the "Racing Laboratory"), for analysis.

C. Results of Racing Laboratory Testing .

15 . The Racing Laboratory , following applicable

procedures, performed an analysis on the syringes f ound in

Mr. Saric's tack box and the blood serum samples take n from

Youngbro Clever and Swift Courier.

16 . No prohibited substance was detected by t he Racing

Laboratory analysis of the 35 cc syringe .

17 . Flunixin was detected by t he Racing Laboratory

analysis of the 12 cc syringe .

18. 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 Co mmissioners

International, Inc. has classified Flunixin under the Uniform

Classification Guidelines for Foreign Substan ces a s a " Class IV "

drug. As such, it is considered an "impermissible substance."

19 . Flunixin in excess of 200 ng/ml. was also found by t he

Racing Laboratory in blood serum sample number 173675 which had

been collected from Youngbro Clever .

20 . Flunixi n in excess of 200 ng/ml. w as also found by t he

Racing Laboratory in blood serum sample number 173680 , which had

been collected from Swift Courier.

21 . In addition to Flunixin, t he R acing 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 contain ed

phenylbutazone, or its metabolites , in excess of 16 micrograms

per mi l liliter of serum.

23. Like Flunixin, phenylbutazone is a "no n - steroidal

anti - inflammatory drug" which can be used to suppress

inflammation and provide pain relief to race horses.

24 . Pursuant to Florida Administrative Code Rule 61D -

6.008, p henylbutazone , unlike Flunixin, may be administered to a

race horse in an a mount 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.

25 . Dr. Cole testified convincingly and credibly that

Flunixin and phenylbutazone had been adminis tered to Youngbro

Clever and Swift Courier within 24 hours of the ir scheduled

races on June 27, 2005.

26 . Youngbro Clever and Swift Courier, having been

administered Flunixin and phenylbutazone within 24 hours of

their scheduled races, would have been abl e to compete at a

higher level in their scheduled races than if these drugs had

not been ministered to them.

27 . Ac cording to Dr. Cole, whose unrebutted testimony in

this regard i s also credit ed, if Youngbro Clever and Swift

Courier had been allowed to ru n their scheduled races , blood

samples collected immediately after the ir respective race s would

have revealed the presence of phenylbutazone in each horse in

excess of 8 micrograms per milliliter of serum .

D . Mr. Saric's Prior Disciplinary History .

28 . M r. Saric has previously been disciplined by the

Division on two separate occasions. On both occasions,

Mr. Saric was fin ed because Methocarbamol (a skeletal muscle

relaxant and Class IV drug) was detected i n urine samples

collected from Youngbro Clever as part of the post race

analyses.

29 . 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 Cod e Rule 61D -

6.011(1).

30 . 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).

E. Mr. Saric's Responsibility for Youngbro Clever and

Swift Courier .

31. 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.

32. 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.

CONCLUSIONS OF LA W

A. Jurisdiction

33 . The Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding and the

parties thereto pursuant to Sections 120.569, 120.57(1),

550.0251( 3), and 550.2415(2)(d) and (13), Florida Statutes .

B. The Charges of the Administrative Complaint .

35 . Section 550.105(5)(b), Florida Statutes, authorizes

the Division to deny, suspend, revoke, or declare ineligible any

occupational license , including Mr. Saric's license, if the

holder thereof violates the provi sions of Chapter 550 , Florida

Statutes, or the D ivision 's rules governing the conduct of

persons associated with racetracks.

36 . Section 550.0251, Florida Statutes, provides that the

Division:

May impose an administrative fine for a

violation under this c hapter of not more

than $1,000 for each count or separate

offense, except as otherwise provided in

this chapter, and may suspend or revoke a

permit, a pari - mutuel license, or an

occupational license for a violation under

this chapter. . . . .

37 . In its Amended Administrative Complaint, the Division

has alleged in Counts One and Two that the recovery on July 27,

2005, of an empty 35 CC syringe with a needle attached from

Mr. Saric's tack box located in front of Bard C, Stall 8, are

disciplinable offenses. Although not clearly pled, it is

apparently the Division's position that the presence of the

syringes constitutes a violation of Florida Administrative Code

Rule 61D - 6.004(2)(a)2. and, therefore, a violation of Section

550.105( 5)(b), Florida Statutes.

38 . The Division has alleged in Counts Three and Four that

both You ngbro Clever and Swift Courier had blood serum samples

collected by the State Veterinarian on July 27, 2005 , and that

both of those blood serum s amples, when tested by the R acing

Laboratory, were found to contain Flunixin . Again, although not

clearly pled, it is apparently the Division's position that the

presence of Flunixin constituted violations of Section 550.2415,

Florida Statutes , and Florida A dminis trative Code Rule 61D -

6.011(1).

39 . Finally, in Counts Five and Six, the Division has

alleged that both Youngbro Clever and Swift Courier had blood

serum samples collected by the State Veterinarian on July 27,

2005 , and that both of th ose blood serum samples, when tested by

the R acing Labor atory, were found to contain p henylbutazone or

its metabolites in an impermissible amount. Apparently it is

the Division 's position that the level of phenylbutazone found

the two horses is contrary to Florida Administrative Code Rule

61D - 6.008(2)(c) and, therefore, violates Section 550.2415,

Florida Statutes.

C . Absolute Insurer Rule .

40 . Florida Administrative Code Rule 61D - 6.002(1), known

as the "Absolute Insu re r Rule," provides , in pa r t , that "[t]he

trainer of record shall be responsible for and be th e absolute

insurer of the condition of horses . . . he/she enters into the

race."

41 . The Absolute Insurer Rule is based upon the belief

that it is necessary to impose strict liability upon those

engaged in the pari - mutuel wagering industry as a condition of

licensure in order to protect the integrity of the industry. In

its decision in Division of Pari - Mutuel Wagering, Department of

Business Regulation v. Caple , 362 So. 2d 1350, 1354 - 1355 (Fla.

1978), upholding the validity of the Absolute Insurer Rule, the

Supreme Court of Florida stated the following:

On review of these more recent authorities,

we are now persuaded that Florida should

align itself with the well reasoned majority

view. To protect the integrity of this

unique industry, it is really immat erial

whether "guilt" should be ascribed either

directly or indirectly to the trainer. The

rules were designed, and reasonably so to

condition the grant of a trainer's license

on the trainer's acceptance of an absolute

duty to ensure compliance with reaso nable

regulation governing the areas over which

the trainer has responsibility. Whether a

violation o ccurs as a result of the person al

acts of the trainer, of persons under his

supervision, or even of unknown third

parties, the condition of licensure has been

violated by the failure to provide adequate

control, and the consequence of the default

is p ossible suspension of the trainer's

license or a fine. We have no doubt that a

rule which both conditions a license and

establishes with specificity reasonabl e

precautionary duties within the competence

of the licensee to perfo r m is both

reasonable and constit utional.

See also Department of Business and Professional Regulation v.

Levkoff , DOAH Case No. 01 - 0262PL (Final Order July 15, 2004);

Department of Busin ess and Professional Regulation v. Smith ,

DOAH Case No. 02 - 4028PL (Final Order July 15, 2004); Department

of Business and Professional Regulation, Division of Pari - Mutuel

Wagering v. Petrillo , DOAH Case Nos. 02 - 3890PL and 0 2 - 3891PL

(Final Order January 24, 2003 ) ; and Department of Business and

Professional Regulation, Division of Pari - Mutuel Wagering v.

Abbey , DOAH Case No. 02 - 1058PL (Final Order November 7, 2002 ) .

42 . In addition to being found valid in the Caple

decision, the Absolute Insurer Rule has be en upheld in

Hennessey, Warren and Gangemi v. Department of Business and

Professional Regulation, Division of Pari - Mutuel Wagering , 818

So. 2d 697 (Fla. 1st DCA 2002). That decision upheld a Final

Order entered by the Division of Administrative Hearing s i n DOAH

Case Nos. 99 - 5254RX, 00 - 2821RX, and 00 - 3809RX finding that

Florida Administrative Code Rule 61D - 6.002(1) was not an invalid

exercise of delegated legislative authority.

43 . This theory of a trainer's strict responsibility and

liability is found in all of the rule provisions at issue in

this case:

a. Florida Administrative Code Rule 61D - 6.004(2) prohibits

a licensee from allowing the existence of hypodermic needles,

injectable vials, syringes, etc., in his or her personal

property or effects, regard less of how they got there . The rule

requires no showing that the trainer actually placed the

syringes on his or her property ;

b. Florida Administrative Code Rule 61D - 6.011(1) prohibits

the "presence" of C lass I - V foreign substances, again, without

regar d as to how the substance was administered or by whom .

Again, the rule does not require proof that the trainer actually

injected or caused to be injected the drug ; and

c. Finally, Florida Administrative Code Rule 61D -

6.008(2)(c), establishes penalties, w here phenylbutazone or its

metabolites equal to or in excess of 8 micrograms per milliliter

of blood serum is found, to be imposed on "the trainer of record

as the absolute insurer of the horse." Again, the rule does not

require proof that the trainer act ually injected or caused to be

injected the drug.

D. The Burden and Standard of Proof .

44 . The Division seeks to impose penalties against

Mr. Saric through its Amended Administrative Complaint that

include a suspension or revocation of his license and/or the

imposition of administrative fines. Therefore, the Division

must prove by clear and convincing evidence that Mr. Saric

violated the relevant provisions of Section 550, Florida

Statutes, and the Division's rules. Department of Banking &

Finance, Divi sion of Securities & Investor Protection v. Osborne

Stern & Co. , 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington ,

510 So. 2d 292, 294 (Fla. 1987); Pou v. Department of Insurance

& Treasurer , 707 So. 2d 9 41 (Fla. 3d DCA 1998); and

§ 120.57(1)(j), Fla. Stat . (2005).

45 . Citing Slomowitz v. Walker , 429 So. 2d 797, 800 (Fla.

4th DCA 1983), the Florida Supreme Court described what

constitutes "clear and convincing" evidence in In re Henson , 913

So. 2d 579, 590 (Fla. 2005):

[C]lear and convincing evidence requi res that the

evidence must be found to be credible; the facts

to which the witnesses testify must be distinctly

remembered; the testimony must be precise and

explicit and the witnesses must be lacking in

confusion as to the facts in issue. The evidence

mu st be of such weight that it produces in the

mind of the trier of fact a firm belief or

conviction, without hesitancy, as to the truth of

the allegations sought to be established.

E . Counts One and Two; Violation of Florida Administrative

Code Rule 61D - 6 .004(2) (a) .

46 . Rule 61D - 6.004(2)(a), Florida Administrative Code,

provides, in part, the following:

(2)(a) No licensee within the grounds of a

racing permitholder where racing animals are

lodged or kept shall have in or upon the

premises which that per son occupies or has

the right to occupy, or in that licensee's

personal property or effects, the following:

. . . .

2. Any hypodermic needle, injectable

vial, syringe capable of accepting a

hypodermic needle or which may accept a

volume greater than 6 ounces, tube device

for naso - gastric or gastric intubati on;

. . . .

4 . Except as provided in subsection

(2)(b), any other device which could be used

for the injection, infusion, or other

administration of a legend drug, proprietary

drug or medicin al compound (natural or

synthetic) into a horse or racing greyhound.

47 . The evidence in this case proved that two syringes,

with needles, as described in the Amended Administrative

Complaint, were found in Mr. Saric's tack box. That tack box

was a part of Mr. Saric's premises or an area he had the right

to occupy and it was located within the grounds of a racing

permitholder where racing animals were being lodged and kept.

48 . Read in conjunction with the Absolute Insurer Rule,

the Division has proved clearly and convincingly that Mr. Saric

violated Florida Administrative Code Rule 61D - 6.004(2)( a ), and,

therefore, Section 550.105(5)(b), Florida Statutes, as alleged

in Counts One and Two of the Amended Administrative Complaint.

F . Counts Three and Four; Violation of F lorida

Administrative Code Rule 61D - 6.011(2) .

49 . Florida Administrative Code Rule 61D - 6.011(2),

provides, in part:

(2 ) The presence of a Class I - V foreign

substance, as defined by the Uniform

Classification Guidelines for Foreign

Substa nces, revised January 7, 2000, as

promulgated by the Association of Racing

Commissioners International, Inc., in the

bodily fluids of an animal collected either

immediately prior to or immediately after

the racing of that animal constitutes a

violation of Chapter 550, Florida Statutes.

The Uniform Classification Guidelines for

Foreign Substances, revised January 7, 2000,

as promulgated by the Association of Racing

Commissioners International, Inc., is hereby

incorporated and adopted by reference. . . .

Al though not relied upon by the Division in this case, t he

presence of any drug, including those defined as Class I - V

foreign substances, in the blood serum of a race horse is also

defined in Section 550.2415, Florida Statutes, quoted, infra , as

a violation.

50 . The evidence proved that blood serum samples were

collected from Youngbro Clever and Swift Courier on June 27,

2005, and that, when tested by the Racing Laboratory, were found

to contain Flunixin . Flunixin is a " Class IV " drug as defined

by the Unif orm Classification Guidelines for Foreign Substances,

revised January 7, 2000, as promulgated by the Association of

Racing Commissioners International, Inc.

51 . Read in conjunction with the Absolute Insurer Rule,

the Division has proved clearly and convin cingly that Mr. Saric

violated Rule 61D - 6.011(2), Florida Administrative Code, as

alleged in Counts Three and Four of the Amended Administrative

Complaint. Mr. Saric, therefore, also was proved to have

violated Section 550.2415, Florida Statutes.

G . Coun ts Five and Six; Violation of Florida

A dministrative Code Rule 61D - 6.008 (2) (c) .

52 . Counts Five and Six allege that the blood serum

samples taken from the two horses under Mr. Saric' s control on

July 2 7, 2005, tested positive for a prohibited amount of

p h e nylbutazone. The Division, in t he Amended Administrative

Complaint , apparently has taken the position that this

constitutes a violation of Florida Administrative Code Rule 61D -

6.008(2)(c), which provides:

(c) When the post race serum sample

contains a n amount of phenylbutazone or its

metabolites equal to or in excess of 8

micrograms per milliliter of serum, the

trainer as the absolute insure of the horse,

shall be subject to the following penalties:

. . . .

53 . Florida Administrative Code Rule 61D - 6.008(2)(c) does

not specifically define the use of p henylbutazone or its

metabolites in the defined amount as a prohibited activity for

which a trainer may be subjected to discipline. In actuality ,

Florida Admi nistrative Code Rule 61D - 6.008(1) simply pr ovides an

exception to Section 550.2415, Florida Statutes, by allowing the

use of phenylbutazone and Florida Admini strative Code Rule 61D -

6.008(2) simply defines an appropriate penalty where

phenylbutazone is found to equal to or in excess of 8 micrograms

per milliliter of serum .

54 . The actual provision prohibiting the presence of

foreign substances, including p henylbutazone, in a racing

horse's blood serum is Section 550.2415, Florida Statutes

(2005), which provides, in part:

(1)(a) The racing of an a nimal with any

drug, medication, stimulant, depressant,

hypnotic, narcotic, local anesthetic, or

drug - masking agent is prohibited. It is a

violation of this section for a person to

administer or cause to be administered any

drug, medication, stimulant, de pressant,

hypnotic, narcotic, local anesthetic, or

drug - masking agent to an animal which will

result in a positive test for such substance

based on samples taken from the animal

immediately prior to or immediately after

the racing of that animal. . . .

. . . .

(c) The finding of 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.

No prejudice as been caused to Mr. Saric by the failure of the

Division to clearly cite this statutory provision in the A mended

Administrative Complaint as the provision of law violated by the

acts described in Counts Five and Six.

55 . Section 550.2415(1)(c), Florida Statutes, creates a

re buttable presumption that an impermissible drug was

administered and that the drug would have been carried in the

body of the animal during the race on the day the specimen was

collected. See Levkoff , supra . Mr. Saric offered no evidence

that calls into question either the collection or testing of the

blood serum samples in this case. No did he offer any evidence

to raise any doubt as to the accuracy of the test s results. The

rebuttable presumption was not, therefore, overcome.

56 . Read in conjunction with the Absolute Insurer Rule,

the Division has proved clearly and convincingly that Mr. Saric

violated Section 550.2415, Florida Statutes, due to the presence

in blood serum samples taken from Youngbro Clever and Swift

Courier on July 27, 2005, of phenyl butazone in a amount equal to

or in excess of the amount established in Florida Adminis trative

Code Rule 61D - 6.008(2) .

H. Mr. Saric's Affirmative Defense .

57 . Mr. Saric did not dispute the essential facts alleged

in the Amended Administrative Complaint. Indeed, Mr. Saric

agreed to the accuracy of most of the factual allegations of the

Ame nded Administrative Complaint.

58. Instead of challenging the material facts of the

Amended Administrative Complaint , Mr. Saric has asserted and

attempted to prove that he was not responsible for the two

syringes found in his tack box and that he did not administer or

in any way cause to be administered the Flunixin or

p henylbutazone found in the blood serum samples taken from

Youngbro Clever or Swift Courier on July 27, 2005.

59 . At best, the evidence presented by Mr . Saric raised

some doubt as to who actually placed the syringes in his tac k

box and who administered Flunixin and p henylbutazone to the two

horses. His attempt to prove that he did not place the syringes

i n the tack box or administer the drugs failed, as did his

effort to prove that Jeremy Glowacki was responsible for both

placing the syringes and administering the drugs.

60 . Of greater significance, Mr. Saric was unable to

present any evidence that he had met his responsibility to

ensure that drug paraphernalia was not found within the grounds

of a racing permitholder where racing animals were lodged or to

ensure that horses for which he was the trainer of record had

not been adm inistered prohibited substa nces or substances in an

inappropriate amount .

61 . Having concluded that the factual bases for

Mr. Saric's affirmative defenses have not been proved, the legal

argument presented by counsel for Mr. Saric as to the impact

such defenses may have on the appl ication of the Absolute

Insurer Rule in this case need not be discussed in this

Recommended Order.

I . Penalty Guidelines .

62 . Section 550.105(5)(b), Florida Statutes , authorizes

the Division to suspend, revoke, or declare ineligible any

occupational lic ense upon proof of a violation of Chapter 550,

Florida Statu t es, or the Division's rules. Section 550. 0251,

Florida Statutes , authorizes the Division to "impose an

administrative fine for a violation under this chapter of not

more than $1,000 for each cou nt or separate offense, except as

otherwise provided in this chapter, and may suspend or revoke a

permit, a pari - mutuel license, or an occupational license for a

violation under this chapter. . . . ." Section 550.0251,

Florida Statutes, thus limits the ma ximum fine which may be

imposed on Mr. Saric to $1,000.00 per count, or a total of

$6,000.00.

63 . While no more specific penalty guidance is provided

for a violation of Florida Administra tive Code Rule 61D -

6.004(2)(a) ( Counts On e and Two), Florida Adminis trat ive Code

Rule 61D - 6.011(2)(d) (Counts Three and Four), provides relevant

penalty guidelines where a Class IV impermissible substance such

as Flunixin is found in a race horse's serum . Specific penalty

guidance is also provided for a violation of Secti on 5 50.2415,

Florida Statutes , by a violation of Florida Administrative Code

Rule 61D - 6.008(2)(c) (Counts Five and Six) .

64 . In addition to the penalty guidelines of Florida

Administrative Code Rules 61D - 008(2)(c) and 61D - 6.011(2)(d),

Florida Administrati ve Code Rule 61D - 2.021 provides a non -

exclusive listing of "[c]ircumstances which may be considered

for the purposes of mitigation or aggravation of any penalty."

Those mitigating and aggravating circumstances include:

(1) The impact of the offense on the integrity

of the pari - mutuel industry.

(2) The danger to the public and/or racing

animals.

(3) The number of repetitions of offenses.

(4) The number of complaints filed against the

licensee or permitholder, which have resulted in

prior discipl ine.

(5) The length of time the permitholder has

practiced.

(6) The deterrent effect of the penalty

imposed.

(7) Any efforts at rehabilitation.

(8) Any other mitigating or aggravating

circumstances.

65 . In its Proposed Recommended Order, the Division has

requested, without reference to the specific penalty guidelines

of Florida Admini strative Code Rules 61D - 6.008(2) (c) and 61D -

6.011(2), that Mr. Saric's pari - mutuel wagering occupational

license be revoked and that he be required to pay an

admi nistrative fine of $9,500.00.

66. The Division has argued in its Proposed Recommended

Order that its requested penalties are justified because of the

existence of three aggravating circumstances: (a) the impact of

the offense on the integrity of the pari - mutuel industry;

(b) "both horses tested positive for the very same drug that

was contained in one of the syringes that was discovered in

Respondent's tack box"; and (c) "in the past 12 - months,

Respondent has accumulated two Class IV drug positives t hat

resulted in discipline from the Stewards of Pompano Park

Racing."

67. The penalty requested by the Division is excessive and

ignores the law governing this matter. Section 550.021, Florida

Statutes, specifically limits the amount of any fine to

$1,00 0.00 per count. Therefore, a fine of $6,000.00 is the

maximum fine which the Division may be imposed. A fine of

$6,000.00 is also consistent with the Division rule guidelines

as discussed, infra .

68. The request that Mr. Saric's license be revoked is

al so excessive. First, the Division's requested discipline is

much harsher then the Division rule guidelines as discussed,

infra . Second, the Division's reliance on the three suggested

aggravating circumstances is somewhat misplaced. The first

aggravating circumstance has already been taken into account in

imposing the Absolute Insurer Rule on Mr. Saric. The second and

third circumstances have also been taken into account to a large

extent in the guidelines provided by the Division for multiple

violations . The guidelines gradually increase the penalties

after the first, second , and third offense during a 12 - month

period. Finally, the Division's requested penalty fails to take

into account the nature of the evidence presented in this case.

Although Mr. S aric did not prove his affirmative defenses, he

did present enough evidence to cause the trier of fact to

question the veracity of Jeremy Glowacki's testimony.

J. The Appropriate Pena l t y : Counts One and Two .

69 . Counts One and Two are based upon the dis covery of two

different syringes with needles in Mr. Saric's tack box in

violation of Florida Administrative Code Rule 61D - 6.004. One of

those syringes, the 12 cc syringe, was found to contain

Flunixin, a prohibited Class IV drug which was also found in t he

blood serum samples from Youngbro Clever and Swift Courier.

Mr. Saric had been fined twice during the past sever al months

for the discovery of a prohibited Class IV drug in Youngbro

Clever.

70. N o specific penalty guidelines are provided for a

violati on of Florida Administrative Code Rule 61D - 6.004. Under

the circumstances of this case, and consistent with the

guidelines for the violations involved in Counts Three through

Six, it is concluded that the imposition of a fine of $1,000.00

f or each of Coun ts One and Two is appropriate.

70. Additionally, Mr. Saric's license should be suspended

for a period of 60 days.

K. The Appropriate Penalty; Counts Three and Four .

71 . As to Counts Three and Four , Florida Administrative

Code Rule 61D - 6.011(2) provides the following penalty

guidelines :

(2) Pursuant to Rule 61D - 6.002, Florida

Administrative Code, the trainer of record

is the absolute insurer of the condition of

an animal he or she enters to race.

Consequently, when evidence of the presence

of an imperm issible substance, or

substances, is presented either to the

Division or to a panel of stewards or

judges, the Division or the stewards or

judges, absent aggravating or mitigating

circumstances, must impose on the trainer of

record one or more of the follo wing

penalties, in accordance with the class of

impermissible substance. . . .

The Rule goes on to provide the following relevant guidelines:

(a) for a "first violation" the penalty guideline includes a

"Reprimand, $100 to $250 fine"; (b) for a "second v io lation in a

12 - month period, the penalty guideline includes a "$250 to $500

fine"; and (c) for a "third or subsequent violation in a 12 -

month period" a penalty guideline of "$500 to $1,000 fine,

suspension of license up to 30 days."

72 . This case involv es the third and fourth time for which

Mr. Saric has been disciplined for a horse testing positive for

a prohibited Class IV drug in its blood serum. One of th e

horses, Youngbro Clever, is the same horse which tested positive

on the previous two occasions .

73 . It is, therefore, appropriate to impose the maximum

fine of $1,000.00 for t he positiv e blood serum sample for

Flunixin from Youngbro Clever . It is also appropriate to impose

an additional fine of $1,000.00 for the positive blood serum

sample for Fl unixin from Swift Courier.

74 . Additionally, the maximum suspension guideline of 30

days should be imposed for both Count Three and Co unt Four, or a

total of 60 days .

L. The Appropriate Penalty; Counts Five and Six .

75 . As to Counts Five and Six, the fo llowing guidance is

provided for a violation of Section 550. 2415, Florida Statutes

(2005), under the circumstances described Florida Administrative

Code Rule 61D - 6.008(2)(c):

(c) When the post race serum sample

contains an amount of phenylbutazone or it s

metabolites equal to or in excess of 8

micrograms per milliliter of serum, the

trainer as the absolute insurer of the

horse, shall be subject to the following

penalties:

1. First violation $500 fine and

in a 12 - month period suspension of any

div ision licens e 0

to 15 days .

2. Second violation $1,000 and

in a 12 - month period suspension of any

division license up

to 30 days.

3. Third or subsequent $1,000 fine and

violation in a 12 - month suspension of any

period division license up

to 60 days.

76 . Neither Youngbro Clever nor Swift Courier actually

raced on June 27, 2005 , and, consequently , the blood serum

samples collected from them were pre - race, rather than post - race

samples. Therefore, the penalty guidelines of Flor ida

Administra tive Code Rule 61 D - 6.008(2)(c) do not specifically

apply in this case. The Division, however, provided credible,

unrefuted evidence in the form of expert opinion that

p henylbutazone at the levels found in Youngbro Clever and Swift

Courier on July 27, 2005 , would have, had the horses raced, been

detected at concentrations exceeding 8 micrograms per milliliter

of serum in post - race serum samples. It is , therefore,

appropriate to rely upon the guidelines in recommending the

approp riate discipline in this cas e.

77 . Count Five involves the detection of p henylbutazone in

the blood serum sample collected from Youngbro Clever (sample

number 173675) . T his is Mr. Saric's fifth violation of Section

550.2415, Florida Statutes , within a 12 - month period. He

should, t herefore, be subjected to the maximum $1,000. 00 fine

for Count Five and a 60 - day suspension.

78 . Count Six involves the detection of phenylbutazone in

the blood serum sample collected from Youngbro Clever (s ample

number 173675). This is Mr. Saric's sixth violation of Sec tion

550.2415, Florida Statutes , within a 12 - month period. He

should, therefore, be subjected to the maximum $1,000.00 fine

for Count Six and a 60 day suspension.

M . Overall Penalty .

79 . Based upon the foregoing, Mr. Saric should be req uired

to pay a total of $ 6,000.00 in fines , the maximum of $1,000.00

per count.

80. The guidelines also suggest the imposition of a

suspension of his license of 240 days . Given that Mr. Saric has

committed so many violations from December 2005 through Ju ly

2006 , the suspension should be increased to two years.

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 o f

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 R ecommended O rder; 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 $ 6,0 00.00.

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 Apa lachee 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 14 th day of April, 2006.

COPIES FURNISHED:

S. Thomas Peavey Hoffer

Ralf E. Michels

Assistants General Counsel

Department of Business and

Profe ssional 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, Directo r

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

Northw ood Centre

1940 North Monroe Street

Tallahassee, Florida 32399 - 2202

NOTICE OF RIGHT OT SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this recommended order. Any exceptions

to this recommended order should be filed with the agency that

will issue the final order in these cases.