16-006423PL Department Of Business And Professional Regulation, Division Of Pari-Mutel Wagering vs. Teresa M. Pompay Status: Closed Recommended Order on Tuesday, February 7, 2017.

Summary: Respondent's pari-mutuel license may not be disciplined based upon laboratory test results obtained pursuant to a de facto division policy relating to extraction and sealing of serum specimens that constitutes an unadopted rule.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND

PROFESSIONAL REGULATION,

DIVISION OF PARI - MUTEL WAGERING,

Petitioner,

vs. Case No. 16 - 6423PL

TERESA M. POMPAY,

Respondent.

_______________________________/

RECOMM E NDED ORDER

Th is case came before Administrative Law Judge F. Scott

Boyd through video teleconference at sites in Lauderdale Lakes

and Tallahassee, Florida, on January 4, 2017 .

A PPEARANCES

For Petitioner: William D. Hall , Esquire

Th omas J. Izzo , Esquire

Department of Business and

Professional Regulation

2601 Blair Stone Road

Tallahassee, Florida 32399 - 2202

For Respondent: Bradford J. Beilly, Esquire

Beilly and Strohsahl, P.A.

1144 Southeast Third Avenue

Fort Lauderdale, Florida 33316

STATEMENT OF THE ISSUE

Whether Respondent raced a horse that was impermissibly

medicated in violation of section 550.2415(1)(a), Florida

Statutes (201 5 ) , and implementing administrative rules 1/ as

alleged in the Amended Admini strative Complaint ; and , if so,

what sanction is appropriate.

PRELI MINARY STATEMENT

Petitioner, Department of Business and Professional

Regulation, Division of Pari - Mutuel Wagering (Petitioner or

Division), served a n Amended Administrative Complaint on

Teresa M. Pompay (Respondent or Ms. Pompay) on October 13 , 201 6 .

The complaint alleged that Respondent was the trainer of record

of thoroughbred horses raced at Florida racetracks with

restricted drugs on February 20, 2016, and May 13, 2016 , and

charg ed t wo count s of violation of statutes and rules governing

pari - mutuel racing. Respondent disputed material facts alleged

in the complaint and timely requested an administrative hearing

on October 17, 2016. The case was forwarded to the Division of

Administrative Hearings (DOAH) for assignment of an

administrative law judge on November 2, 2016 .

The final hearing was conducted on January 4, 2017, based

upon extensive stipulations of fact , which have been accepted

and are included among th e facts set forth below. At hearing,

t wo Joint Exhibits, J - 1 and J - 2 , were also admitted. Official

recognition was given to Flori da Administrative Code R ule 61D -

6.005, both as it existed prior to June 15, 2015, and as it

existed after that date at the times of the alleged violations.

Official recognition was also given to the f inal o rders in

Zaidie v. Department of Business and Professional R egulation,

Division of Pari - Mutuel Wagering , Case No. 15 - 5037 (Fla. DOAH

Nov. 25, 2015; Fla. DBPR Jan . 11, 2016) , and Department of

Business and Professional Regulation, Division of Pari - Mutuel

Wagering v. Ziadie , Case Nos. 14 - 4716PL and 15 - 2326PL (Fla. DOAH

Dec. 15, 2015; Fla. DBPR Jan. 11, 2016) (Zaidie cases) . The

parties also stipulated at hearing that but for the af firmative

defenses raised by Respondent and addressed here , the Division

has prove d the charges against Ms. Pompay.

A court reporter participated in the heari ng, but neither

party ordered a t ranscript. On January 17, 2017, b oth parties

timely filed p roposed r ecommended o rders that were considered in

the preparation of this Recommended Order.

FINDINGS OF FACT

1. The Division is the state agency charged with

regulating pari - m utuel wagering in the s tate of Florida,

pursuant to chapter 550, Florida Statutes .

2 . At all times material, M s . Pompay held a

pari - mutuel wagering professional individual occupational

license, number 1001817 - 1 021 , issued by the Division .

3 . At all times material, M s . Pompay was subject to

chapter 55 0 and the implementing rules in Florida Administrative

Code C hapter 61D.

4 . Under s ection 550.2415(1)(a) , an animal that has been

impermissibly medicated or determined to have a prohibited

substance present may not be raced . It is a violation of th e

stat ute for a person to impermissibly medicate a horse which

results in a positive test for such medications based on samples

taken immediately after the rac e.

5 . Rule 61D - 6.002(1) provides: " [t]he trainer of record

shall be responsible for and be the absolute insurer of the

condition of the horses . . . he/she enters to race. "

6 . Ms. Pompay was the trainer of record for the

horse named R B ling S hin es who raced at Gulfstream Park on

February 20, 2016.

7 . R B ling Shines won her race and was then sent to the

Division - operated equine detention barn for the taking of urine,

blood or other such samples pursuant to r ule 61D - 6.005. The

equine detention barn is the site at each licensed racetrack in

Florida where employees of the Division obtain urine and blood

samples from racehorses.

8 . Ms. Pompay was the trainer of record for the horse

named R un Saichi who raced at Gulfstream Park on May 13, 2016.

9. Run Saichi finished second in his race and was then

sent to the Division - operated equine detention barn for the

taking of urine, blood or other such samples pursuant to

r ule 61D - 6.005.

10 . Rule 61D - 6.005, en titled " Procedures for Collecting

Samples from Racing Ani mals " was in effect when R Bling Shines

and Run Saichi were sent to the equine d etention barn for the

collection of " urine, blood or other such samples " as authorized

by the rule. The term " other such samples , " as used in the

rule , means hair and saliva. The rule does not refer to the

" processing " of whole blood samples into blood serum.

11 . The University of Florida Laboratory determined that

the post - race blood sample taken from R Bling Shines tested

positive for a blood serum overage of the permitted medication

" betamethasone. "

12 . The University of Florida Laboratory determined that

the post - race blood sample taken from Run Saichi tested positive

for a blood serum overage of the permitted medication

" mepivicaine. "

13 . On February 20, 2016, the Equine Detention Barn

Procedures Manual ( 2010 Manual ) was in effect for all equine

detention barn facilities. The 2010 Manual was in effect

between June 2010 and April 7, 2016. At the time the 2010

Manual became effective, r ule 61D - 6.005 (2001) was in ef fect.

14 . On November 25, 2015, the R ecommended O rder issued in

Case No. 15 - 5037 concluded that subsection 4.6 of the 2010

Manual was an unadopted r ule of the Division and that pursuant

to section 120.57(1)(e)1., F lorida S tatutes , the Division could

not b ase agency action on blood serum samples obtained pursuant

to it. On January 11, 2016, the director of the Division issued

a Final O rder finding that subsection 4.6 of the 2010 Manual was

an unadopted r ule of the Division .

15 . On December 15, 2015, the R ecommended O rder issued in

c onsolidated Case Nos. 14 - 4716 and 15 - 2326 concluded that

subsection 4.6 of the 2010 Manual was an unadopted r ule of the

Division and that pursuant to section 120.57(1)(e)1. the

Division could not base agency action on blood seru m samples

obtained pursuant to the unadopted rule . On January 11, 2016,

the director of the Division issued a F inal O rder finding that

subsection 4.6 of the 2010 Manual was an unadopted r ule of the

Division.

16 . On April 7, 2016, the 2016 Guidelines were distributed

to all equine detention barn facilities to become effective as

of that date. The 2016 Guidelines superseded and replaced the

2010 Manual. At the time the 201 6 Guidelines became effective,

r ule 61D - 6.005 (2015) was in effect. The 2016 Guidel ines were

in effect on May 13, 2016, when Run Saichi raced at Gulfstream

Park.

17 . The 2010 Manual prescribed detailed procedures for

collecting blood samples from race horses, spinning the blood in

the centrifuge to extract the serum, pouring of the seru m into

the evergreen tube, sealing of the evergreen tube with evidence

tape, and mailing of the specimen to the laboratory for testing.

The 2010 Manual was applicable to every horse racing facility

within the State of Florida. It had been in effect in its then -

current form between 2010 and April 2016 and, by its own terms,

was mandatory. It provided that veterinary assistants, chief

veterinary assistants, detention barn security guards, and

detention barn supervisors " study, become completely familiar

wit h, and put into practice " the procedures outlined in the 2010

Manual. It described seven steps in chain - of - custody

procedures, three of which are " collecting the specimen, sealing

the specimen, and completing the required forms, " and describe d

detailed pr ocedures in this " strict sequence of events that must

be followed. "

18 . The 2016 Guidelines do not prescribe the detailed

procedures for collecting blood samples from racehorses,

spinning the blood in the centrifuge to extract the serum,

pouring of the se rum into the evergreen tube, sealing of the

evergreen tube with evidence tape, freezing the sample and

mailing of the specimen to the laboratory for testing. However,

since the date the 2016 Guidelines were put into effect, the

procedures followed by Divi sion employees in the testing barn

for the processing of the whole blood into blood serum, the

pouring of the serum into the evergreen tube, the sealing of the

tube with evidence tape, the freezing of the sample and the

mailing of the specimen to the labor atory have been the same as

those prescribed by the 2010 Manual.

1 9 . At the time of the implementation of the 2016

Guidelines, there were no " established procedures pursuant to

applicable law and administrative rule " to process whole blood

into blood seru m other than the procedures set forth in

subsection 4.6 of the 2010 Manual. In addition, at the time of

the implementation of the 2016 Guidelines, there were no

" testing laboratory SOPs " or " protocols " in place for detention

barn personnel to follow. Acc ording to the laboratory director,

the laboratoryÓs SOPs and protocols do not begin to operate

until the moment the samples arrive at the laboratory in

Gainesville.

20 . The Division published the 2010 Manual under the

direction of its deputy director and dist ributed it to every

employee who worked at a detention barn, including the state

veterinarian, the chief veterinary assistant, other veterinary

assistants, detention barn security guards, and detention barn

supervisors. The 2010 Manual was not made av ailable to the

general public unless a copy was requested as a public record.

The 2010 Manual was an official publication of the Division used

at all horse racing facilities in the State of Florida and was

last updated on June 25, 2010. During the approxi mate six - year

period that the 2010 Manual was in effect, not one ownerÓs

witness went to the detention barn at the end of the racing day

t o observe the pouring of blood serum from the blood tubes into

the evergreen tube.

21 . The Division published the 2016 Guidelines under the

direction of its deputy director and distributed it to every

employee that worked at a detention barn, including the state

veterinarian, the chief veterinary assistant, other veterinary

assistants, detention barn se curity guards, and detention barn

supervisors. The 2016 Guidelines were not made available to the

general public unless a copy was requested as a public record.

Since the 2016 Guidelines took effect, not one ownerÓs witness

has gone to the detention barn at the end of the racing day to

observe the pouring of blood serum from the blood tubes into the

evergreen tube.

22 . The Division uses various forms in connection with

blood and urine sampling. The forms catalog the specimens and,

if the procedures set f orth in the 2010 Manual and the 2016

Guidelines are followed, demonstrate that the horse was in the

testing barn at the time the blood and urine samples were taken.

23 . The Division Ós Form RL 173 - 3 is a self - adhesive

sequentially numbered bar - coded, three - part form (blood label,

urine label and card) provided by the University of F lorida

Racing Laboratory used to catalog specimens by assigning them

" Specimen Numbers. " As specimens are collected, information

regarding the animal from which the sample was c ollected is

written on the bottom of this form. The top two portions of the

form ( b lood, u rine) are completed with the Track Number and

Collection Date. The applicable top portions of the form are

then separated and applied to the urine specimen cup and/ or

evergreen blood tube. The bottom portion, or Specimen Card is

completed , appropriately signed , and sent to the Tallahassee

Office of Operations to be filed.

24 . The sample tag thus consists of three portions: the

numbered portion designated for the b lood specimen (blood

label), the numbered portion designated for the urine specimen

(urine label), and the numbered portion containing information

about the animal and trainer that was requir ed to be signed by

the witness ( card) under rule 61D - 6.005 (2001) and " may " be

signed by the witness under rule 61D - 6.005 (2015). In the

sampling procedures followed in this case, the blood labels were

not affixed to the collection tubes. The blood labels, from

which the card portion was " detached, " were affixed to the

evergreen blood tubes. This was consistent with the governing

rule , as well as the 2010 Manual. The evergreen tube is the

specimen container for the serum.

25 . The sampling procedures followed on February 20, 2016,

were in complianc e with the procedures set forth in the 2010

Manual. The sampling procedures followed on May 13, 2016 , were

the same as those followed on February 20, 2016.

26 . As stated in subsection 4.4 of the 2010 Manual,

" [s]ealing the sample ensures the specimen doe s not spill during

shipment to the laboratory and assures all parties that the

sample has not been tampered with " between the time the sample

is sealed at the detention barn and the time the sample is

received by the University of Florida Laboratory. The same

purposes are served by sealing the serum specimen.

27 . The procedures prescribed in the 2010 M anual for the

collection of whole blood and the processing of the whole blood

into serum were followed when the blood samples from the horses

trained by Ms. Pompay were taken on February 20, 2016 , and

May 13, 2016. After the blood was centrifuged, and the serum

was poured into the evergreen tube, the serum was sealed with

evidence tape, as described in subsection 4.6 of the 2010

Manual, and the chief veteri nary assistant put his initials over

the seal. This constituted " sealing " of the specimen in its

container. Subsection 4.6 of the 2010 Manual provided:

Serum is poured into applicable (numbered)

" evergreen " tubes. Each " evergreen " tube is

immediately properly sealed with evidence

tape.

The opening of the blood tubes, the pouring of the serum from

the blood tubes into the evergreen tube, and the sealing of the

evergreen tube was witnessed by two Division employees: a chief

veterinary assistant or dete ntion barn supervisor who pours the

serum f rom the blood tubes to the evergreen tubes and another

employee who observes the process.

28 . In the proposed recommended orders referred to in

paragraph s 14 an d 15 above, a specific finding of fact was made

that the 2001 version of r ule 61D - 6 . 005 did not make reference

to spinning the blood in the centrifuge to extract serum, the

pouring of serum into an evergreen tube, the sealing of the

evergreen tube with evidence tape or the freezing of the

specimen.

29 . The state veterinarian who took the blood sample from

R Bling Shines and Run Saichi signed PMW Form 504, a Daily

Record of Sample Collection, indicating that this was done.

After centrifuging the whole blood in the collection tubes, at

the end of the day the state veterinarian usually leaves the

collection tubes with the chief veterinary assistant, who pours

the separated serum from each collection tube into the

correspondingly numbered evergreen container and seals it (under

the observation of another de tention barn employee). Sometimes,

the state veterina rian stays to observe the transfer of the

serum to the evergreen specimen container.

30 . There is no signature indicating the time the state

veterinarian leaves the samples at the detention barn or the

time the chief veterinary assistant opens the collection tubes

and transfers the serum.

31 . In each instance of sampling in this case, the owner's

witness signed the card portion of the sample tag (Form RL 172 -

03) after the taking of the urine and blood samples. In fact,

since the change in r ule 61D - 6 . 005 in June 2015, no ownerÓs

witness has refused to sign the sample tag.

32 . In each instance of sampling in this case, the owner's

witness signed the card portion of the sample tag (Form RL 172 -

03) after the sealing of the urine specimen in its container,

but before the whole blood was processe d into blood serum, the

blood ser um was poured into the serum container, and the serum

container was sealed.

33 . The pouring of the collection tubes into specimen

container s takes place at the end of the racing day, after all

of the horses have departed f rom the detention barn. It would

be very inconvenient for an authorized witness to remain until

the serum specimens were sealed.

34 . The sampling procedures set forth in the 2010 Manual

and the sampling procedures in use under the 2016 Guidelines are

imp ortant to the Division, to the trainers, and to the public.

These sampling procedures affect the substantive rights of the

trainers as they are the " absolute insurer " of the horseÓs

condition when it races.

35 . The centrifuging process, extraction of the serum, and

sealing of the serum specimen as described in detail in

subsection 4.6 of the 2010 Manual were never discussed at a

rule - making hearing. These procedures are not part of r ule 61D -

6.005, adopted in 2001 , nor are they part of r ule 61D - 6.005 as

a m ended in 2015.

36 . Until it was superseded by the 2016 Guidelines, t he

2010 Manual applie d to every state - licensed horse racing

facility in the State of Florida. It was a policy attributable

to the Division. A mendment s to rule 61D - 6.005, effective June

15, 2015, to eliminate all references to the sealing of the

blood serum specimen , left the 2010 Manual provisions

establishing policy on extra cting and sealing the serum specimen

without support in statute or adopted rule.

37 . After the amendments to the rule, the provisions of

the 2010 Manual requiring extraction and sealing of the serum

specimen were general ly applicab le Division policy that creat ed

rights important to a trainer . These provisions constituted an

unadopted rule .

38 . The established procedures pursuant to applicable law

and administrative rule referenced by the 2016 Guidelines , which

Division employees are required to follow , are the procedures

that were set forth in the 2010 Manual. T hese procedures for

the processing of the whole blood into blood serum, the pouring

of the serum into the evergreen tube, the sealing of the tube

with evidence tape, the freezing of the sample , and the mailing

of the specimen to the laboratory survive as de facto policies

of the Division notwithstanding the " repeal " of the 2010 Manual .

3 9. The de facto Division policy regarding extraction and

sealing of serum specimens affect rights important to trainers

and has the direct and consistent effect of law .

40 . Division emplo yees do no t have the discretion not to

follow the de facto Division policy regarding extraction and

sealing of serum specimens.

41 . The de facto Division policy regarding extraction and

sealing of serum specimens constitutes an unadopted rule.

CONCLUSION S O F LAW

42 . DOAH has jurisdiction over the parties and the subject

matter of this proceeding pursuant to sections 120.569 and

120.57(1), Florida Statutes (201 6 ).

43 . The substantial interests of Respondent are being

determined by Petitioner , and Respondent has standing in this

proceeding.

44 . A proceeding to suspend, revoke, or impose other

discipline upon a license is penal in nature. State ex rel.

Vi ning v. Fla. Real Estate Comm'n , 281 So. 2d 487, 491 (Fla.

1973). Petitioner must therefore pr ove the charges against

Respondent by clear and convincing evidence. Fox v. Dep't of

Health , 994 So. 2d 416, 418 (Fla. 1st DCA 2008)(citing Dep't of

Banking & Fin. v. Osborne Stern & Co. , 670 So. 2d 932 (Fla.

1996)).

45 . The clear and convincing standard of proof has been

described by the Florida Supreme Court as follows :

Clear and convincing evidence requires 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 t he facts

in issue. The evidence must 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.

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

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

46 . Section 550.2415 (1)(a) provide d :

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 imme diately after the

racing of that animal. Test results and the

identities of the animals being tested and

of their trainers and owners of record are

confidential and exempt from s. 119.07(1)

and from s. 24(a), Art. I of the State

Constitution for 10 days a fter testing of

all samples collected on a particular day

has been completed and any positive test

results derived from such samples have been

report ed to the director of the division or

administrative action has been commenced.

47 . W hen a race horse has been impermissibly medicated or

drugged, action may be taken " against an occupational licens ee

responsible pursuant to rule of the division " for the horseÓs

condition. § 550.2415(2), Fla. Stat.

48 . Consistent with the above statutes, Petitioner adopte d

rule 61D - 6.002, last amended effective January 10, 2016, the

" absolute insurer rule, " making trainers strictly responsible

for violations .

4 9 . Section 120.52(20) provides that an unadopted rule is

an agency statement that meets the definition of a " rule , " but

t hat has not been adopted pursuant to the requirement s of

section 120.54.

50 . Section 120.52(16), in relevant part, defines the term

" rule " as follows:

" Rule " means each agency statement of

general applicability that implements,

interprets, or prescribes law or policy or

describes the procedure or practice

requirements of an agency and includes any

form which imposes any requirement or

s olicits any information not specifically

required by statute or by an existing rule.

51 . The courts have considered several elements of this

statutory definition in determining whether a statement

constitutes an unadopted rule. Perhaps the most fundamental

element is that it must be an " agency " statement, that is, an

expression of policy b y the agency. First, it must be a

statement of the agency as an institution, not merely the

position of a single employee. It must be properly attributable

to the agency head or some duly - authorized delegate. Dep't of

High. Saf. & Motor Veh. v. Schluter , 705 So. 2d 81, 87 (Fla. 1st

DCA 1997)(Benton, J., concurring and dissenting). Second, to be

a statement attributable to the agency, it must go beyond the

mere reiteration or restatement of policy already established by

a properly adopted rule or by the implemented statute.

St. Francis Hosp., Inc. v. DepÓt of HRS , 553 So. 2d 1351 (Fla.

1st DCA 1989).

52 . While rare, courts have recognized that de facto

policy established by procedures may constitute an unadopted

rule. See Dep't of Bus. & Prof'l Reg. v . Harden , 10 So. 3d 647,

649 (Fla. 1st DCA 2009)(committee procedure by which license

applications were reviewed was unadopted rule); Dep't of Rev. v.

Vanjaria Enters., Inc. , 675 So. 2d 252, 254 (Fla. 5th DCA 1996)

(assessment procedure to determine tax ex emption contained in

training manual was unadopted rule).

53 . The requirement that a statement be generally

applicable involves the field of operation of the statement.

Dep't of Com. v. Matthews Corp. , 358 So. 2d 256 (Fla. 1st DCA

1978)(wage rates appl icable to public works contracts held not

to be rules because they applied only to the construction of a

particular public building and did not establish wages elsewher e

in the state into the future).

54 . The concept of general applicability also involves the

force and effect of the statement itself. An agency statement

that requires compliance, creates or adversely affects rights,

or otherwise has the direct and consistent effect of law is a

rule. Sta te Bd. of Admin. v. Huberty , 46 So. 3d 1144, 1147

(Fla. 1st DCA 2010).

55 . An agency statement must also be consistently

applicable. In Department of Highway Safety and Motor Vehicles

v. Schluter , 705 So. 2d 81, 82 (Fla. 1st DCA 1997), the court

found th ree of the challenged policies not to be generally

applicable because an employeeÓs supervisor was not required to

apply them, and therefore they could not be considered to have

the " consistent effect of law. " See also Coventry First, LLC,

v. Off. of Ins. Reg. , 38 So. 3d 200, 205 (Fla. 1st DCA

2010)(examination manual provided to examiners of the Office of

Insurance Regulation not generally applicable because examiners

had discretion not to follow it).

R Bling Shines

56 . Respondent contends that the resul ts of the laboratory

tests from the February 20, 2016 , race may not be used as a

basis for discipline of her license because they were obtained

pursua nt to the 2010 Manual procedures, and the 2010 Manual is

an unadopted rule.

57 . Respondent first argues t hat administrative estoppel

bars Petitioner from using the test results from the February

race. Although the Division determined one year ago that the

2010 Manual constitute d an unadopted rule , it is too simplistic

to automatically conclude that the 2010 Manual remains an

una dopted rule solely because of th at earlier determination .

The unadopted rule doctrine established by chapter 120 requires

not only examination of the contents of unadopted agency policy,

but consideration of tha t policy against the backdrop of

relevant statutes and properly adopted rules. Petitioner is

therefore correct that amendment of applicable rules is

relevant, and the full context of the agency policy statement

must be considered.

58 . Beyond the estoppel issue , h owever, contrary to

Petitioner's argument the specific rule amendments enacted by

the Division here did not obviate the need to adopt the 2 010

Manual into rule . That argument is predicated on the decisions

in the Zaidie cases , where it was held that some portions of the

2010 Manual constitute d unadopted rules , while other portions

did not . F ollowing rule amendments which eliminated all

references to the sealing of serum samples or the requirement to

witness that sealing , Petitioner c ontends that th e corresponding

portions of the 2010 Manual became " simply t echnical

implementation akin to subsections 4.4 and 4.5 of the Manual "

and should be found not to be rules for that reason.

5 9. T he obvious conflict between the 2010 Manual and the

old rule was certainly a factor in determining that the 2010

Manual constituted an unadopted rule in the Zaidie cases , but

conflict is not required . C hapter 120 require s simply that a ny

agency policy meeting the definition of a rule not contained in

an adopted rule be properly adopted. § 120.54(1)(a) , Fla. Stat.

60 . As stipulated, t he sampling procedures set forth in

the 2010 Manual are important to the Division, to the trainers,

and to the public. These sampling procedures affect the

substantive rights of trainer s as they are made the " absolute

insurer " of a horseÓs condition when it races. The sealing of a

sample is a cri tical part of those procedures , ensuring that the

sample is correctly correlated with the animal from which it

came , while tem porarily keeping the identity of the horse and

trainer confidential . As the parties stipulated, sealing the

sample also ensures the specimen does not spill during shipment

to the laboratory and assures all parties that the sample is not

tampered with b etw een the time it is sealed and the time it i s

received at the l aboratory. E limination of all references in

the rule to the sealing of the bl ood serum s pecimen leaves the

critical sealing procedures mandated by the 2010 Manual without

support in statute or adopted rule. The 2010 M anual provisions

governing sealing can hardly be considered as mere technical

implementation that is implicit and incidental to an explicit

policy of sealing blood serum specimens when no such policy is

establ ished either in s tatute or properly adopted rule. The

surgical excision of provisions of the rule relating to the

sealing of specimens thus only reinforced the 2010 Ma nualÓs

status as unadopted policy . T he 2010 M anualÓs provisions should

have been incorporated by rule, or other provisions regarding

th ese critical process es should have been adopted.

61 . After the amendments to r ule 61D - 6.005 , effective

June 15, 2015, s ubsection 4.6 of the 2010 Manual , requiring that

the serum in the evergreen tubes must be " immediately properly

sealed with evidence tape , " remained an agency statement of

general applicability that describe d procedure requirements

creating rights important to a trainer and constitute d an

unadopted rule on February 20, 2016 .

62 . Section 120.57(1)(e)1., Florida Statutes (201 6 ),

provides:

An agency or an administrative law judge may

not base agency action that determines the

substantial interests of a party on an

unadopted rule. The a dministrative law

judge shall determine whether an agency

statement constitutes an unadopted rule.

This subparagraph does not preclude

application of adopted rules and applicable

provisions of law to the facts.

63 . D iscipline of RespondentÓs license may not be based

upon test results of serum obtained from R Bling Shines on

February 20, 2016, pursuant to the unadopted procedures of

subsection 4.6 of the 2010 Manual . Th ere is no other evidence

of record that R Bling S hines was impermissibly medicated or had

a prohibited substance present during the race on February 20,

2016. Petitioner failed to prove that Respondent violated

section 550.2415(1)(a) as alleged in Count I of the

Administrative Complaint.

Run Saichi

64 . The race on May 13, 2016, taking place as it did after

the 2016 Guidelines had " super s eded and replaced " the 2010

Manual, involves different considerations .

65 . Petitioner argues , as expressed both at hearing and in

its proposed recommended order, that the 2010 Manual was

replaced not only because it was an unadopted rule , but also

because it failed to afford the Division flexibility .

Petitioner contends that the new 2016 Guidelines will not lock

the Division in to a particular method of processing, bu t will

allow it to change its procedures going forward. But t he

probabilities of future c hange in circumstance or advances in

science are reasons to amend rules ; they are not reasons to

eschew them. The Division is justified in " repealing " the 201 0

Manual rather than adopting it only if the Division policy

contained in the 2010 Manual in fact no longer exists .

66 . Respondent maintains that the Division policy still

survives , noting that since the 2016 Guidelines took effect, the

procedures followe d by Division employees h ave continued to be

exactly those prescribed by the 2010 Manual. This carries some

weight, but standing alone does not prove that a de facto

Division policy on separating and sealing serum samples still

exists. Had the barns cont inued these procedures without

variation over an extended time period, this evidence would

likely be alone sufficient to raise a reasonable inference that

Division policy was still in place. However, g iven the short

time since the 2010 ManualÓs replacemen t, it is at least

possible that Division policy has truly been repealed and that

it is only bureaucratic enertia that induces individual barns to

continue to follow the old procedures.

67 . Respondent additionally maintains that language in

section V. of t he 2016 Guidelines directs Division personnel to

continue to follow the old procedures that were described in the

2010 Manual . T he 2016 Guidelines provide , in part , that State

of Florida regulatory personnel shall:

Perform any necessary tasks associated with

the collection, recordation, handling,

processing, storing, and transporting of the

collected and/or processed specimen samples

in accordance with established procedures

pursuant to applicable law and

administrat ive rule to ensure the protection

and preservation of the integrity of the

specimen samples .

T he processing and sealing of serum samples easily falls within

th is category of tasks. This text of the 2016 G uidelines, 2 /

coupled with the partiesÓ binding fa ctual stipulation that, at

the time of the ir implementation, " there were no Òestablished

procedures pursuant to applicable law and administrative ruleÓ

to process whole blood into blood serum other than the

procedures set forth in subsection 4.6 of the 2010 Manual "

(emphasis added) , compels the conclusion that the Division did

intend all barns to continue precisely as before. 3 /

68 . Further, s ection 550.0251 (3) provides:

The division shall adopt reason able rules

for the control, supervision, and direction

of all applicants, permittees, and licensees

and for the holding, conducting, and

operating of all racetracks, race meets, and

races held in this state. Such rules must

be uniform in their application and effect,

and the duty of exercising this control and

power is made mandatory upon the division.

This statute does not allow the Division to delegate or

relinquish control of critical race sampling protocols to the

various testing barns, but instead expressly requires that it

exercise this authority itself, and further requires that

policies be uniform in application and effect.

6 9. In summary, any argument that the Division no longer

has a policy requiring th at serum be separat ed and sealed is

rejected . It is simply not plausible that the Division intends,

contrary to its statutory mandate, to allow each testing barn to

do whatever it likes: separat ing the serum in some cases, but

not others; seal ing the serum specimen in some cases, but not

others. It is concluded , to the contrary , that the Division

retains its former policy, and has only " repealed " a written

expression of it. Replacement of the 2010 Manual with the 2016

Guidelines was a formalistic charade masking the reality that

there was no change in actual Division policy as to the sampling

procedures to be followed by track personnel. T his is not to

say that the Division is necessarily required to have a policy

that se rum be separated and sealed to " assure all parties that

the sample has not been tampered with " -- a question not raised by

this record 4 / -- but rather to say that since it does have such a

policy, it must be adopted by rule. Should th e Division in fact

decide to repudiate its established policy of separating and

sealing serum specimens, it must clearly commit itself to th at

course. What it cannot do , under chapter 120 , is continue to

follow established Division polic ies at all of the racing tracks

in Florida while denying trainers and the public the opportunity

to be aware of, and the opportunity to participate in the

development of, these important policies.

70 . Discipline of RespondentÓs license may not be based

upon test results of serum obtained pursuant to these unadopted

p olicies. Th ere is no other evidence of record that R un Saichi

was impermissibly medicated or had a prohibited substance

present during the race on May 13 , 2016. Petitioner failed to

prove that R espondent violated section 550.2415(1)(a) as alleged

in Count I I of the Amended Administrative Complaint.

U REC OMM ENDATION

Based on the foregoing Findings 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 dismissing the Amended Administrative Complaint against

Teresa M. Pompay .

DONE AND ENTERED this 7 th day of February , 2017 , in

Tallahassee, Leon Co unty, Florida.

S

F. SCOTT BOYD

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 7 th day of February , 2017 .

ENDNOTE S

1/ Except as otherwise indicated, statutory references in

this Recommended Order are to the text of the 201 5 Florida

Statutes , which remained unchanged in 2016 and so was the same

at the time of all alleged violations . R eferences to Florida

Administrative Code rules are to those in effect at the time the

alleged violations occurred, on February 20, 2016 , and May 13,

2016 .

2 / RespondentÓs distinct argument that the cited text of the

2016 Guidelines incorporates the 2010 M anual provisions

themselves by reference is rejected . E ven if it were a ssum ed

that the reference to the procedures rather than the legal

authority could constitute an incorporation al by reference , t he

phrase " established procedures " would certainly be general in

nature rather than specific , and so would be an " ambulatory "

reference under the American convention and Dexter presumption .

See generally Boyd, " Looking Glass Law: Legislation by

Reference in the States, " 68 La. L. Rev. 1201, 12 36 - 124 5 (2008) .

The fact that the 2016 Guidelines superseded and replaced the

2010 Manual itself would thus mean that this " repeal " of the

2 010 Manual would be given effect through the incorporation .

3/ Any related argument that the 2016 Guidelines have no binding

effect on Division employees is rejected. The title and

introductory description of the 2016 Guidelines as containing

only " gu idelines, best practice tips, and recommendations " is

given little weight, as these are clearly declarations by

drafters attempting to avoid the conclusion that the document

was another unadopted rule. That determination must depend on

the effect of the d ocument, not its characterization by the

agency. While many provisions of the 2016 Guidelines are

seemingly innocuous, the very nature and language of the

specific provisions addressing the sample collection and

preservation process compel the conclusion that they are

mandatory for detention barn employees.

4 / Cf. Lewis v. N.Y. Stat e Racing & Wagering Bd. , 189 A.D. 2d

621, 622, 592 N.Y.S. 2d 345 (App. Div. 1993)(lack of proof of

" lidding and sealing " of urine cup failed to ensure the

integrity and the identity of a urine sample); Wise v.

Commonwealth, Pa. State Horse Racing Com. , 100 Pa. Commw. 205,

206, 514 A. 2d 308, 309 (1986)(gaps in proof of the chain of

custody concerning blood and urine samples go to the weight of

the test imony, not its admissibility).

COPIES FURNISHED:

Bradford J. Beilly, Esquire

Bradford and Strohsahl, P.A.

1144 Southeast Third Avenue

Fort Lauderdale, Florida 33316

(eServed)

William D. Hall, Esquire

Thomas J. Izzo, Esquire

Department of Business and

Professional Regulation

2601 Blair Stone Road

Tallahassee, Florida 32399 - 2202

(eServed)

Jonathan Zachem, Director

Division of Pari - Mutuel Wagering

Department of Business and

Professional Regulation

Capital Commerce Center

2601 Blair Stone Road

Tallahassee, Florida 32399

(eServed)

Jason Maine, General Counsel

Department of Business and

Professional Regulation

Capital Commerce Center

2601 Blair Stone Road

Tallahassee, Florida 32399 - 2202

(eServed)

NOTICE OF RIGHT TO 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 this ca se.