10-004229PL Department Of Business And Professional Regulation, Division Of Pari-Mutuel Wagering vs. Manuel J. Criollo Status: Closed Recommended Order on Tuesday, January 11, 2011.

Summary: Pursuant to the absolute insurer rule, Respondent is guilty of violating section 550.2415(1)(a), where caffeine and oxilofrine were detected in post-race blood and urine samples. Recommend 30-day suspension and $500 fine.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL RE GULATION, )

DIVISION OF PARI - MUTUEL )

WAGERING , )

)

Petitioner, )

)

vs. ) Case No. 10 - 4229 PL

)

MANUEL J. CRIOLLO , )

)

Respondent. )

)

RECOMMENDED ORDER

This case came before Administrative Law Judge Edward T.

Bauer for final hearing by video teleconference on November 22 ,

2010 , at sites in Tallahassee and Miami, Florida.

APPEARANCES

For Petiti oner: David N. Perry , Esquire

Department of Business and

Professional Regulation

Division of Pari - Mutuel Wagering

1 9 40 North Monroe Street

Tallahassee, Florida 32399 - 2202

For Respondent: Manuel J. Criollo, pro se

c/o Singing O aks Farm

6363 Northwest 170th Avenue

Morriston, Florida 32688

STATEMENT OF THE ISSUES

The issues a re whether Respondent violated s ection

550.2415(1)(a), Florida Statutes, and if so, what penalty should

be imposed.

PRELIMINARY STATEMENT

On April 21 , 2009, Petitioner Department of Business and

Profe ssional Regulation, Division of Pari - Mutuel Wagering ("the

Division") , issued an Administrati ve Complaint against

Respondent . The Admini strative Complaint al leged that

Respondent violated s ecti on 550.2415(1)(a) , in that a

thoroughbred r acehorse trained by Respondent, "Cardiac Ou tp ut,"

tested positive for prohibited substances. Through counsel,

Respondent timely requested a formal hearing to contest these

allegations, and on June 29 , 2010 , the m atter was referred to

the Division of Administrative Hearings.

On July 27, 2010, citing "irreconcilable differences,"

counsel for Respondent filed a "Motion to Withdraw as Counsel of

Record for Respondent, Manuel J. Criollo." Administrative Law

Judge Jo hn G. Van Laningham entered an Order Allowing Withdrawal

of Counsel on August 9, 2010. Subsequently, on September 2,

2010, the instant matter was transferred to the undersigned.

During the final hearing , the Division presented the

te stimony of Dian a Neira and Dr. Richard Sams. The Division

also introduced five exhibits, identified as A, C, D, E, and F.

Respondent testified on his own behalf and introduced o ne

exhibit, identified as Respondent's Exhibit A . At the

conclusion of the final hearing, t he undersigned advised the

parties that proposed recommended orders would be due 10 days

from the filing of the hearing transcript.

The T ranscript of the final hearing was filed on

December 10 , 2010. On December 27, 2010, Petitioner filed a

reque st for an extension of time to submit a proposed

recommended order . The undersigned granted the request, and

directed that proposed recommended orders be filed no later than

January 7, 2011. Both parties subsequently filed proposed

recommended orders, wh ich the undersigned has considered.

Unless otherwise indicated, citations to the Fl orida

Statutes refer to the 200 8 version of the Florida Statutes.

FINDINGS OF FACT

1. The Division is the agency of the State of Florida

charged with regulating pari - mu tu e l w agering pursuant to c hapter

550, Florida Statutes.

2. At all times relevant to this proceeding, Respondent

held a pari - mutu e l wagering thoroughbred trainer license, number

260970 - 1021, issued by the Division in 2001 .

3. On August 29, 2008, and at all times material hereto,

Respondent was the trainer of re cord for "Cardiac Output, " a

thoroughbred racehorse.

4. On August 29, 2008, Cardiac Output was entered, and

finished second, in the fifth race at Calder Race Course.

5. Approximately thirty minutes after the conclusion of

the race, and in accordance with established procedures, a

Division employee collected urine and blood sample s from Cardi ac

Output. The blood and urine samples were assigned number s

421716 B and 421716U, respectively .

6. Cardiac Output's race day specimens were analyzed by

the University of Florida Racing Laboratory (the lab), which is

retained by the Division to test urine and blood samples from

animals racing at pari - mutuel facilitie s in Florida. Th e Lab ,

following appl icable procedures, foun d that th e blood and urine

specimens contained c affeine, which acts as a central nervous

system stimulant and is categorized as a Class Two drug pursuant

to the Uniform Classification Gu idelines for Foreign Substances. 1

In addition, the Lab detected o xilofrine , a cardiac stimulant,

in the urine sample . Although o xilofrine is a non - classified

drug, it has the potential to cause injury to racehorses,

particularly when ad ministered in combination with c affeine.

7. Subsequently, purs uant to s ection 550.2415(5)(a) , the

Division split Cardiac Output's race day specimens into primary

samp le s and secondary ("split") sample s . The split sample s were

then forwarded to the Louisiana State University (LSU) School of

Veterinary Medicine for co nfirmatory testing. On July 15, 2009,

LSU submitted a report confirming the presence of caffeine and

o xilofrine.

8. During the final hearing, Respondent testified that he

did not knowingly administer any prohibited substances to

Cardiac Output. The un dersigned finds Respondent's testimony to

be credible.

9 . Ne vertheless, the "absolute insurer rule, " which is

described in detail below, requi res the undersigned to find as a

matter of ultimate fact that Responden t violated section

550.2415(1)(a) .

CONCLUSIONS OF LAW

A. Jurisdiction

10 . T he Division of Administrative Hearings has personal

and subject matter jurisdiction in this proceeding pursuant to

s ections 120.569, 120.57(1), and 550.2415(3)(d), Florida

Statutes.

B. Burden of Pr oof

11 . A proceeding, such as this one, to suspend, revoke, or

impose other discipline upon a professional license is penal in

nature. St ate ex rel. Vining v. Fla. Real Estate Comm' n , 281

So. 2d 487, 491 (Fla. 1973). According ly, to impose discipline,

t he Division must prove the charges against Respondent by clear

and convincing evidence. Dep't of Banking and Fin. , Div. of

Sec. & Investor Protect. v. Osborne Stern & Co. , 670 So. 2d 932,

933 - 34 (Fla. 1996); Ferris v. Turlington , 510 So. 2d 292, 294 - 95

(F la. 1987) ; Nair v. Dep't of Bus. & Prof'l Regulation , 654 So.

2d 205, 207 (Fla. 1st DCA 1995).

1 2 . Clear and convincing evidence:

requires that the evidence must be found to

be credible; the facts to which the

witnesses testify must be distinctly

remember ed; the testimony must be precise

and lacking in confusion as to the facts in

issue. The evidence must be of such a

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.

In re Davey , 645 So. 2d 398, 404 (Fla. 1994)( quoting Slomowitz

v. Walker , 429 So. 2d 797, 800 (Fla. 4th DCA 1983)).

C. The Charge Against Mr. Criollo

1 3 . As noted previously, the Division alleges that

Respondent violated s e ctio n 550.2415(1)(a), which reads , in

relevant part :

(1)(a) The racing of an animal 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 per son to

administer or cause to be administered any

drug, medication, stimulant, depressant,

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 anim al

immediately prior to or immediately after

the racing of that animal.

14 . In turn, section 550.2415(1) (c) , provides that the

finding of a " prohibited substance in a race - day specimen

constitutes prima facie evidence that the substance was

administere d and was carried in the body of the animal while

participating in the race."

15 . Florida Administrative Code Rule 61D - 6.002(1 ), also

known as the "absolute insurer rule ," imposes strict liability

on trainers as a condition of licensure :

(1) The trainer of record shall be

responsible for and be the absolute insurer

of the condition of the horses . . . he/she

enters to raceainers . . . are presumed

to know the rules of the division.

(Emphasis added).

16 . Al though the imposition of strict liabil ity upon

licensees such as Respondent can produce harsh results, the

absolute insurer r ule has withstood various challenges over the

years . See Div. of Pari - Mutuel Wagering, Dep't of Bus.

Regulation v. Caple , 362 So. 2d 1350, 1354 - 55 (Fla. 1978)

("Whether a violation occurs as a result of the personal 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 def ault is possible 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

reasonable precautionary duties within the competence of the

licensee to perform is both reasonab le and constitutional");

Hen nessey v. Dep't of Bus. & Prof'l Regulation , 818 So. 2d 697 ,

701 (Fla. 1st DCA 2002) ( " A plain reading of the authorizing

statutes in this case demonstrates that the legislature granted

the department the specific authority to h old a trainer

responsible for the condition of the horses which he trains and

races if these horses are raced wit h any drug in their system . .

. . We, therefore, determine that the absolute insurer rule is

still valid " ); see also Hudson v. Tex. Racing Comm 'n , 455 F.3d

597, 601 (5th Cir. 2006) ("We agree with the majority of

jurisdictions that the absolute insurer rule does not violate

due process. While the absolute insurer rule may be harsh, it

is constitutional"); Cooney v. Am. Horse Shows Ass 'n , 495 F.

Supp. 424, 431 n.4 (S.D.N.Y. 1980) (" The majority of racing

commissions now have even stricter regulations which provide

that the trainer is the absolute insurer of the horse's

condition, and therefore hold him strictly liable for the acts

of others . . . . These regulations do not depend upon the

operation of an irrebuttable presumption of trainer

responsibility for drugging, which in the past was held to

violate due process . . . rather, courts now uphold these rules

on the basis of the state's power to i mpose strict liability as

a reasonable exercise of its regulatory authority over horse

racing"); Berry v. Mich. Racing Comm'r , 321 N.W.2d 880, 882

(Mich. Ct. App. 1982) (" Plaintiff contends that whenever a

prohibited substance is found in a horse's system the insurer

rule creates an irrebuttable presumption that the trainer of the

horse administered the substance or n egligently cared for the

horse. We disagree. The rule, as its name implies, makes the

trainer of a horse that is entered into a race the ins urer of

that horse's condition. It creates no presumption of trainer

fault when the presence of a prohibited substance is found. The

rule simply does not concern itself with assigning fault, but

instead requires the trainer, as a contingency of being lic ensed

by the state, to bear the responsibility for the horse's

condition .").

17 . Pursu ant to the authority discussed above , Respondent,

a s Cardiac Output's trainer, is strictly responsibl e for the

caffeine and o xilofr ine detected in the race day specim ens .

Accordingly, the Division has proven by clear and convincing

evidence that Respondent violated section 550.2415(1)(a) .

D. Penalty

18 . Section 550.2415(2 ) and (3) authorize the Division to

take disciplinary action as follows:

(2) Administrativ e action may be taken by

the division 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.

(3)(a) Upon the finding of a violation of

this section, the division may revoke or

suspend the license or permit of the

violator . . . impose a fine against the

violator in an amount not exceeding $5,000;

require the full or partial return of the

purse, sweepstakes, and trophy of the race

at issue; or impose against the violator any

combination of such penalties. The finding

of a violation of this section in no way

prohibits a prosecution for criminal acts

committed.

19. Florida Administrative Code Rule 61D - 6.011(2)(b)

provides re levant penalty guidelines where a Class II

impermissible substanc e (such as c affeine) is discovered in a

race day specimen . F or a first violation 2 involving a Class II

substanc e, the guidelines call for a penalty of " $100 to $100 0

fine, suspension of lice nse up to 30 days. " As o xilofine is an

unclassified drug, Florida Administrative Code Rule 61D -

6.011(2)(b) does not provide a recommended penalty range.

20. In its Proposed Recommended Order , the Division takes

the position that the Administrative Comp laint contains two

counts, and as such, seeks the imposition of separate penalties

for the caffeine and the oxilofrine. Specifically, Petitioner

recommends:

Count 1

Class two drug [caffeine], first offense: 30

day suspension of Respondent's pari - mutuel

w agering license, $1,000 fine, and

redistribution of the purse.

Count 2

Unclassified illegal drug [oxilofrine]: One

year suspension of Respondent's pari - mutu e l

wagering license, $1,000 fine.

Recommendation of the Division: One year and

30 day suspensi on of Respondent's pari -

mutu e l wagering license, $2,000 fine, and

redistribution of the purse.

21 . The problem with the Division's request is that the

Administrative Complaint did not charge separate violations for

each of the drugs discovered in the sam ples. Not only was the

complaint not separated into multiple counts, but paragraph 16

of the complaint reads, in pertinent part:

Based on the foregoing, Respondent is

responsible for a violation of Section

550.2415(1)(a), Florida Statutes, which

provides, "[t]he racing of an animal with

any drug, medication, stimulant, depressant,

hypnotic, local anesthetic, or drug - masking

agent is prohibited . . . . "

(Emphasis added).

22. As the preceding language demonstrates, the

Administrative Complaint charged on ly one violation of section

550.2415(1)(a), which Petitioner could prove by alternative

means (i.e., by demonstrating the presence of either caffeine or

oxilofrine). Accordingly, only one penal ty can be imposed in

this cause .

23. In his Propose d Recomm ended Order, Respondent argues

that in the event a finding of guilt is made, his license should

be suspended for a period of two weeks, from April 25 through

May 8, 2011.

24. If caffeine was the only prohibited substance involved

in this matter, the un dersigned woul d be inclined to recommend a

14 - day suspension of Respondent's license and a $250 fine .

However, due to the additional presence of oxil ofrine, the

undersigned concludes that the appropriate penalty is a 30 - day

suspension of Respondent's lice nse and a $500 fine.

25. The undersigned has considered the Division's

recommendation, but finds it to be excessive given the absence

of penalty guidelines for oxilofrine , as well as the fact that

no evidence of any disc iplinary history was introduced.

26. Finally, the undersigned declines to recommend the

redistribut ion of the purse, as insufficient evidence regarding

the purse was presented during the final hearing. Although the

Division's Exhibit C indicates that the total purse was $8,000,

no e vidence was pr esented concerning how it was distributed

among the top three finishers, nor did the Division prove that

Respondent received any portion of the purse. See Dep't of Bus.

& Prof'l Regulation, Div. of Pari - Mutuel Wagering v. Purdy , Case

No. 03 - 713 (Fla. DOAH May 29, 2003) ( " Petitioner argues that it

would be appropriate to require that any purse received in any

of the races in question be returned. The undersigned has,

after careful consideration, rejected that argument because

there was no evi dence as to any of the purses involved in any of

the races at issue in this proceeding, including the amounts of

such purses or whether Respondent received any portion of such

purses . ") (Emphasis added).

RECOMMENDATION

Based on the foregoing Findin gs of Fact and Conclusions of

Law, it is

RECOMMENDED that the Department of Business and

Professional Regulation, Division of Pari - Mutuel Wagering, enter

a final order fi nding that Respondent violated s ection

550.2415(1)(a), as described in this Recommend ed Order;

suspending Respondent 's license for a period of 30 days from the

date of the final order; and imposing a fine of $500 .

DONE AND ENTERED this 11 th day of January, 2011 , in

Tallahassee, Leon County, Florida.

S

___________________________________

EDWARD T. BAUER

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 11 th day of January, 2011 .

ENDNOTE S

1 Two caffeine metabolites, theophylline and theobromine, w ere

also detected.

2 Although the Administrative Complaint alleged that Resp ondent

has previously violated section 550.2415(1)(a), no evidence of

any disciplinary history was introduced during the f inal

hearing. Accordingly, the undersigned will treat the instant

violation as a first offense.

COPIES FURNISHED :

David N. Perry, Esquire

Department of Business and

Professional Regulation

Division of Pari - Mutuel Wagering

19 40 North Monroe Street

Ta llahassee, Florida 32399 - 2202

Manuel J. Criollo

c/o Singing Oaks Farm

6363 Northwest 170th Avenue

Morriston, Florida 32688

Milton Champion, Director

Division of Pari - Mutu e l Wagering

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399 - 2202

Reginald Dixon, General Counsel

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399 - 2202

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the ri ght to submit written exceptions

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

exceptions to this recommended order must be filed with the

agency that will issue the final order in this case.