Solimena v. State, Dept. of Business Regulation, Division of Pari-Mutuel Wagering
| Decision Date | 04 August 1981 |
| Docket Number | 79-2247,79-2290,79-2291,PARI-MUTUEL,Nos. 79-1897,79-2047,80-447 and 80-633,79-2030,s. 79-1897 |
| Citation | 402 So.2d 1240 |
| Parties | Frank Rudolph SOLIMENA; Frank San Pedro; Francis Clifford Joyce, Appellants, v. STATE of Florida, DEPARTMENT OF BUSINESS REGULATION, DIVISION OFWAGERING, Appellee. |
| Court | Florida District Court of Appeals |
Levine & Green and Bruce David Green, Fort Lauderdale, Greene & Cooper and Marc Cooper, Sams, Gerstein & Ward, Miami, for appellants.
David M. Maloney, Frates, Jacobs & Farrar, Tallahassee, for appellee.
Before BARKDULL, SCHWARTZ and BASKIN, JJ.
Three race horse trainers seek to overturn orders of the Florida Division of Business Regulation, Division of Pari-Mutuel Wagering which revoked or suspended their licenses. In consolidated appeals, they challenge the absolute insurer rule under which they were held strictly liable for racing horses in which narcotics were found, without regard to whether they knew 1 that the horses had been given Sublimaze 2, a prohibited drug.
We affirm.
In the eighth race of Tropical Park Race Track held at Calder on November 20, 1978, Lexacon, a horse trained by appellant San Pedro, ran and won a race. After the race, the stimulant Sublimaze was found in the horse's system. The stewards referred the matter to the Division which issued a notice to show cause why San Pedro's license for 1978-1979 should not be suspended or subjected to other appropriate action. The Division referred the matter to the Division of Administrative Hearings (DOAH) for a hearing requested by San Pedro under section 120.57, Florida Statutes (1977). In the meantime, the Division disapproved renewal of his license for the 1979-1980 season; the 1978-1979 license was then due to expire. San Pedro obtained an injunction. The circuit court ordered the license renewed and enjoined suspension until San Pedro had been afforded a hearing and had exhausted his remedies. Over San Pedro's objection, the court ordered the hearing to be held before Division Director Rutledge instead of before DOAH. San Pedro attempted to disqualify Director Rutledge, arguing that Rutledge had prejudged the case, according to newspapers in which he had been quoted as stating that San Pedro's case lacked merit. San Pedro argued that the pending DOAH proceeding precluded the Division from conducting further proceedings. Because the stewards failed to make a finding that he or anyone else had knowingly drugged a horse, San Pedro sought, but failed, to have the matter remanded to the Board of Stewards. After a full hearing, the Director ruled that racing the horse under the influence of narcotics violated Florida Administrative Code Rules 7E-1.06(11)(a), the medication rule, and 7E-1.18(3), the absolute insurer rule. He disapproved the license application for the 1979-1980 season and revoked San Pedro's "current" license.
Appellant Solimena hired Dr. Carl Meyer, a veterinarian, to treat horses he trained to race at Calder during the 1978 to 1979 season. The races were held at Calder for both Calder and Tropical Park Race Tracks. In October and November of 1978, Dr. Meyer administered Sublimaze to six horses and billed Solimena for myopathy treatments. When post-race tests disclosed the presence of the narcotic, the Division director notified the Tropical Park Board of Stewards. The stewards referred the matter to the Division. The Division issued administrative complaints, and in response to requests for hearings, referred the matter to the Division of Administrative Hearings, which conducted a hearing. The hearing officer found that on seven occasions horses trained by Solimena had raced with Sublimaze in their systems and that Solimena could be guilty of a violation of Rule 7E-1.06(11)(a), in view of the language of Rule 7E-1.18(3), but recommended charges be dismissed because Dr. Meyer had administered the drug without Solimena's knowledge. Dr. Meyer testified that he used Sublimaze as a pre-anesthetic agent to treat colic conditions. The Division issued three final orders adopting the hearing officer's finding that the medication rule had been violated on seven occasions, but rejected the hearing officer's findings that appellant did not know of the treatment. 3 The Division suspended Solimena's license for four years and fined him $5,000. An order was subsequently issued suspending Solimena for an additional six months.
Appellant Joyce also hired Dr. Meyer to treat horses he trained. On several occasions, Dr. Meyer administered Sublimaze, which was discovered in the horses after the races. The Tropical Park Board of Stewards notified appellant of the positive test results and referred the matter to the Division of Pari-Mutuel Wagering. Hearings were held on each of two complaints before the DOAH. The DOAH hearing officer ruled appellant could be found guilty of violating the absolute insurer rule but recommended dismissal because Dr. Meyer had administered the drug without appellant's knowledge. The Division adopted the hearing officer's findings that the medication rule had been violated on two occasions but rejected the conclusion that appellant could not be held liable. It suspended his license for a total of 180 days and fined him $200.
The trainers advance a number of arguments in a multi-pronged attack upon the Division's orders.
The issues presented for our consideration emanate from a central concern: whether trainers may be held responsible for racing drugged horses regardless of whether they knew of or participated in administering the drugs. Appellants maintain the legislature did not empower the Division of Pari-Mutuel Wagering to hold them responsible as absolute insurers that the horses race without prohibited stimulants or depressants. They contend, however, that if we determine that the absolute insurer rule, Florida Administrative Code Rule 7E-1.18(3), may be read in conjunction with the medication rule, Florida Administrative Code Rule 7E-1.06(11)(a), to impose responsibility, then we must reject the insurer rule, either because its authorizing statute is vague or because the absolute insurer rule exceeds the Division's authority. In addition, appellants raise jurisdictional questions, and appellant San Pedro challenges the impartiality of the Division Director. We now address these arguments.
Section 550.02, Florida Statutes (1977) and section 550.02(3), Florida Statutes (1977) provide legislative authorization for the enactment of rules by the Division of Pari-Mutuel Wagering:
550.02 The powers and duties of the Division of Pari-mutuel Wagering of the Department of Business Regulation. The Division of Pari-mutuel Wagering of the Department of Business Regulation shall carry out the provisions of this chapter and supervise and check the making of pari-mutuel pools and the distribution therefrom, and:
(3) Make rules and regulations for the control, supervision and direction of all applicants, permittees and licensees, and for the holding, conducting and operating of all racetracks, race meets, races held in this state; provided, such rules and regulations shall be uniform in their application and effect, and the duty of exercising this control and power is made mandatory upon the division. The division may take testimony concerning any matter within its jurisdiction and issue summons and subpoenas for any witness and subpoenas duces tecum in connection with any matter within the jurisdiction of the division under its seal and signed by the director.
The medication rule, 7E-1.06(11)(a), lists as its specific authority section 550.02(4), now renumbered 550.02(3) 4, and as the laws implemented, section 550.02 and section 550.24.
Section 550.24 states:
550.24 Conniving to prearrange result of race; stimulating or depressing horse or dog: penalty. Any person who shall influence or have any understanding or connivance with any owner, jockey, groom or other person associated with or interested in any stable, kennel, horse or dog or race in which any horse or dog participates, to prearrange or predetermine the results of any such race or any person who shall stimulate or depress a dog or horse for the purpose of affecting the results of a race, shall be guilty of a felony of the third degree punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
The absolute insurer rule, 7E-1.18(3) declares:
The trainer shall be responsible for, and be the insuror (sic) of the condition of the horses he enters. Trainers are presumed to know the rules of the Division.
The medication rule, 7E-1.06(11)(a) provides:
(a) The running of a horse in a race with any narcotic, stimulant, depressant or local anesthetic is prohibited. If the stewards shall find that any narcotic, stimulant, depressant or local anesthetic has been administered or attempted to be administered, internally or externally, to a horse before a race, such stewards shall impose such punishment and take such other action as they may deem proper under any of the rules, including reference to the Division, against every person found by them to have administered, or to have attempted to administer, or to have caused to be administered, or to have caused an attempt to administer, or to have conspired with another person to administer, such narcotic, stimulant, depressant or local anesthetic. If the Division laboratory shall find a positive identification of any such medication, such finding shall constitute prima facie evidence that such horse raced with the medication in its system.
If we read the medication rule in conjunction with the absolute insurer rule, one of the conditions a trainer insures is the absence of certain medication in horses he races. Appellants' claims for relief are predicated upon their lack of knowledge that the horses had been given prohibited drugs. They assert that under 550.24...
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