Florida Ruling Means Dozens Of Drug Positives Likely To Be Dismissed: Paulick Report 3/24/17

By: Ray Paulick

Dozens of administrative complaints for medication violations in Florida are likely to be dismissed after the state’s Division of Pari-Mutuel Wagering issued an order accepting the recommendations of an administrative law judge who found that serum sample collection procedures qualified as “unadopted rules” and that no action could be taken against licensees based on positive tests from serum.

At the same time the Division of Pari-Mutuel Wagering accepted the administrative law judge’s recommendation, it posted notice of a 90-day emergency rule outlining new sample collection procedures. That rule went into effect on Friday.

The case precipitating the order was brought by trainer Teresa Pompay, who was notified that two of her horses tested positive last year. R. Bling Shines, winner of a maiden claiming race at Gulfstream Park on Feb. 20, was found to have the Class IV drug betamethasone in her system in a post-race test; and Run Saichi, second in a claiming race at Gulfstream May 13, tested positive for mepivicaine, a Class II substance.

Attorney Bradford Beilly, who won an earlier case by exposing that a 2010 Equine Detention Barn Procedures Manual used by test barn personnel was never adopted as an official “rule,” used a similar argument to have both complaints against Pompay dismissed.

In this case, administrative law judge F. Scott Boyd (who also heard the earlier case) found that the state still had not adopted the 35-page Manual from 2010 as an official rule when R. Bling Shines ran in February 2016. That complaint was dismissed as a result. A new five-page test barn “guidelines” document was put in place April 7, 2016, but Boyd ruled the guidelines were no better in meeting the standards of an officially adopted rule. That led to the dismissal of the mepivicaine complaint against Pompay.

“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,” Boyd wrote.

The deficiencies in both the 2010 Manual and 2016 Guidelines center on a 2001 rule saying owner/trainer representatives be present when the samples are numbered and sealed. The procedures from the 2010 Manual call for the samples to be centrifuged and sealed for shipment to the testing lab at the end of the day’s racing program when no one other than test barn personnel are around.

“As stipulated, the sampling procedures set forth in the 2010 Manual are important to the Division, to the trainers, and to the public,” Boyd wrote. “These sampling procedures affect the substantive rights of trainers as they are made the ‘absolute insurer’ of a horse’s condition when it races. The sealing of a sample is a critical part of those procedures, ensuring that the sample is correctly correlated with the animal from which it came, while temporarily keeping the identity of the horse and trainer confidential. …

“The surgical excision of provisions of the rule relating to the sealing of specimens thus only reinforced the 2010 Manual’s status as unadopted policy. The 2010 Manual’s provisions should have been incorporated by rule, or other provisions regarding these critical processes should have been adopted.”

Beilly said the decision to accept the administrative law judge’s recommendation “is precedent to preclude the Division from relying on any blood serum samples taken since January 2016 as evidence against trainers in any disciplinary cases.”

That puts a cloud over dozens of positive tests called by the University of Florida laboratory after Florida adopted the National Uniform Medication Program on Jan. 2, 2016.

Trainers who have already settled their cases with the state are unlikely to get any relief.

Pompay is also challenging Florida’s split-sample procedures. Unlike most other states, where test barn personnel collect “A” samples for the testing laboratory and “B” samples for confirmation testing in the event of a positive finding, Florida compiles a split sample from remnants of the “A” sample at the laboratory after it has been opened and tested.

The Division of Pari-Mutuel Wagering has scheduled a workshop in April to develop new rules related to split samples.