Judges: WILLIAM E. WILLIAMS
Agency: Department of Business and Professional Regulation
Latest Update: Feb. 20, 1981
Summary: Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William E. Williams, held a public hearing in this cause on September 10, 1980, in Fort Lauderdale, Florida. APPEARANCES For Petitioner: Larry V. Bishins, Esquire 4548 North Federal Highway Fort Lauderdale, Florida 33308 and Arnold Laksy, Esquire 3510 Biscayne Boulevard, Suite 316Resp.'s attempt to have the rules declared invalid failed except as to the imposition of monetary fines which aren't a
Summary: Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William E. Williams, held a public hearing in this cause on September 10, 1980, in Fort Lauderdale, Florida. APPEARANCES For Petitioner: Larry V. Bishins, Esquire 4548 North Federal Highway Fort Lauderdale, Florida 33308 and Arnold Laksy, Esquire 3510 Biscayne Boulevard, Suite 316Resp.'s attempt to have the rules declared invalid failed except as to the imposition of monetary fines which aren't authorized by stat.
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vs. ) CASE NO. 80-1449RX
) STATE OF FLORIDA, DEPARTMENT OF ) BUSINESS REGULATION, DIVISION OF ) PARI-MUTUEL WAGERING, )
Respondent. )
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William E. Williams, held a public hearing in this cause on September 10, 1980, in Fort Lauderdale, Florida.
For Petitioner: Larry V. Bishins, Esquire
For Respondent: David M. Maloney, Esquire
Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
By petition filed with the Division of Administrative Hearings on August 1, 1980, Petitioner, Charles Federman ("Petitioner") challenges the validity of Rules 7E-4.02(17)(a), 7E-4.02(23), 7E-4.09(1)(3), 7E-4.25(11)(11), 7E-
4.25(12)(a) and 7E-4.25(16), Florida Administrative Code, pursuant to the provisions of Section 120.56, Florida Statutes. Final hearing in this cause was scheduled for September 10, 1980, by Notice of Hearing dated August 13, 1980.
At the final hearing, because of certain stipulations between the parties, no testimony was offered nor were any exhibits introduced into evidence.
Because of the pendency of associated proceedings involving these same parties, specifically Division of Administrative Hearings Case Nos. 80-817, 80-1147 and 80-1128R, and due also to extensions of time for briefing and the pendency of proceedings in both the circuit courts and the district courts of appeal, the requirement of Chapter 120, Florida Statutes, that a final order be entered by the Hearing Officer within thirty days from the date of conclusion of the hearing was waived by all parties.
Petitioner is a horse trainer licensed in the State of Florida, and holds Occupational License No. L-25378. Respondent is a division of the Department of Business Regulation, and is charged by law with regulatory authority over Florida's pari-mutuel wagering industry.
On May 5, 1979, Respondent issued an administrative complaint, seeking to fine, suspend or revoke Petitioner's occupational license, alleging that Petitioner had violated Rules 7E-4.25(16) and 7E-4.02(17)(a), Florida Administrative Code. The administrative complaint alleges that on December 7,1 979, a search of Petitioner's automobile, conducted pursuant to Rule 7E-4.02(3), Florida Administrative Code, revealed certain prohibited drugs and other items including Didrex, Narcan, Levophed, cannabis or marijuana, and hypodermic syringes and needles.
The facts alleged in the administrative complaint presently are pending before the Division of Administrative Hearings in Division of Administrative Hearings Case no. 80-1147.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. Section 120.56(1), Florida Statutes.
In his petition, Petitioner challenges the validity of Rules 7E- 4.02(17)(a), 7E-4.02(23), 7E-4.09(1), (3), 7E-4.25(12)(a), 7E-4.25(11)(11), and 7E-4.25(16), Florida Administrative Code.
Section 550.23(3), Florida Statutes, which is listed in the Florida Administrative Code as "specific authority" for the adoption of Rules 7E-4.02 and 7E-4.25, directs Respondent to ". . . carry out the provisions of this chapter and supervise and check the making of pari-mutuel pools and the distribution therefrom . . .," and to:
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 race tracks, race meets [sic], 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. . . .
Rule 7E-4.02(17)(a), Florida Administrative Code, provides that:
No person shall have in his possession any narcotic or hallucinogenic drug, marijuana, or any other drug listed under the dangerous drug laws of this state, unless said drug has been prescribed by a physician or veterinarian.
Rule 7E-4.02(23), Florida Administrative Code, provides that the Division of Pari-Mutuel Wagering, in the course of investigating violations of law or the provisions of Chapter 7E-4:
. . . shall have the power to permit persons authorized by either of them to search the person, or enter and search the stables, rooms, vehicles and automobiles or other places within the track enclosure at which a race meeting is held, or other tracks
or places where the horses eligible to race at said race meeting are kept, of all persons licensed by the Florida State Racing Commission and of all employees and agents of any race track association licensed by said Florida State Racing commission; and of all vendors who are permitted by said race track association to sell and distribute their
wares and merchandise within the race track enclosure, in order to inspect and examine the personel [sic] property or property on such persons or kept in such automobiles, stables, rooms, vehicles, or other places as aforesaid. Each of such licensees, in accepting a license, does thereby consent to
such search as aforesaid and waive and release all claims or possible actions for damages that he may have by virtue of any action
taken under this rule. Each employee of a licensed race track association in accepting
his employment, and each vendor who is permitted to sell and distribute his merchandise within the race track enclosure, does thereby consent to such search as aforesaid and waive and release claims or possible actions for damages they may have by virtue of any action taken under this rule.
Rule 7E-4.02 was last amended, insofar as is here pertinent, on March 16, 1977.
Rule 7E-4.09, Florida Administrative Code, adopted pursuant to Section 550.02(4), Florida Statutes, insofar as it is pertinent to this proceeding, provides as follows:
Any person licensed by the Division or by any person violating any of its rules or regulations shall be liable to the penalties herein provided, unless otherwise limited in and by the rules and regulations of the Division.
* * *
(3) The penalties for violation fo [sic] the rules of the Commission shall be as follows: denial, revocation or suspension of license not exceeding 60 days, or monetary fines not exceeding $200, or both, for each violation.
Rule 7E-4.25(12)(a), Florida Administrative Code, also enacted pursuant to Section 550.02(3), Florida Statutes, provides that:
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 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 have administered, 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.
Rule 7E-4.25 was last amended December 2, 1976.
Rule 7E-4.25(11), Florida Administrative Code, provides that:
Any medication not otherwise specifically prohibited by the rules of the Division may be administered to a horse, however, only in strict compliance with the provisions herein stated:
* * *
(11) Any person breaching the provisions of this rule shall be subject to fine, suspension or revocation of license.
Rule 7E-4.25(16), Florida Administrative Code, provides that:
No person within the grounds of a racing association where race horses are lodged or kept, shall have in or upon the premises which he occupies or has the right to occupy, or in his personal property or effects any prohibited drugs, or any hypodermic syringe, hypodermic needle or other device which could be used for the injection or other infusion into a horse, of a drug, stimulant or narcotic, without first securing written permission from the Stewards. Every racing association, upon the grounds of which race horses are lodged or kept, is required to use
all reasonable efforts to prevent the violation of this rule.
Section 120.56(1), Florida Statutes, provides that:
Any person substantially affected by a rule may seek an administrative determination of the invalidity of the rule on the ground that the rule is an invalid exercise of delegated legislative authority.
Where, as here, a statute empowering an agency to adopt rules authorizes that agency to ". . . make and enforce appropriate rules and regulations to carry out this section ":
. . . the validity of regulations promulgated thereunder will be sustained so long as they are reasonably related to the purposes of the enabling legislation and are not arbitrary or capricious Florida
Beverages Corporation v. Wynne, 306 So.2d 200, 202 (Fla. 1st DCA 1975).
In Agrico Chemical Co. v. State, 365 So.2d 759, 763 (Fla. 1st DCA 1979), it was held that:
A capricious act is one which is taken without thought or reason or irrationally. An arbitrary decision is one not supported by facts or logic, or despotic.
As previously indicated, Respondent in this case has been authorized by the legislature to enact rules and regulations ". . . for the control, supervision, and direction of all . . . licensees . . . and for the holding, conducting, and operating of all race tracks, race meets, [and] races held in this state . . ." Section 550.02(3), Florida Statutes. The obvious purpose of Section 550.02(3), Florida Statutes, is to safeguard the state's legitimate interest in ". . . protecting both the health of . . . horses and the integrity of the sport from which the state derives revenue. . . ." Division of Pari-Mutuel Wagering v.
Caple, 362 So.2d 1350, 1355 (Fla. 1978). In Caple, the Florida Supreme Court specifically recognized that the State of Florida ". . . has a valid objective in seeking to prevent drugging of race horses." Id. With the exception of limited portions of challenged Rules 7E-4.09 and 7E-4.25(11) hereinafter discussed, it is specifically held that the rules challenged in this proceeding are reasonably related to the purposes of the enabling legislation. Since no testimony was offered by either party to this proceeding, no determination can be made on the basis of this record that any of the challenged rules are "arbitrary or capricious."
Finally, as indicated previously, Rule 7E-4.02, Florida Administrative Code, was last amended March 16, 1977. Rule 7E-4.25, Florida Administrative Code, was last amended December 2, 1976. Thus, as indicated by the court in Jax Liquors, Inc. v. Department of Business Regulation, 388 So.2d 1306, 1308, (Fla. 1st DCA 1978):
. . . the presumption of [the rules' validity] [has given] added weight from
[their] having laid upon the public record in the Florida Administrative Code for several legislative sessions without disapproval or interference by the legislature or its Administrative Procedures Committee.
Simply set, Petitioner's primary contention in this proceeding is that the board, general rule-making authority conferred upon the Division by Section 550.02(3), Florida Statutes, is insufficient to support the detailed and quite comprehensive regulatory scheme embodied in Rules 7E-4.02(17)(a), 7E-4.02(23), 7E-4.25(12)(a) and 7E-4.25(16), Florida Administrative Code. The rational employed by the court in the Wynne and Jax Liquors cases cited above, however, compels a contrary conclusion. Petitioner's real complaint concerns the validity of the delegation of authority by the Legislature and the constitutionality of the challenged rules. Jurisdiction to determine these questions lies exclusively in the judicial branch. See, Department of Environmental Regulation v. Leon County, 344 So.2d 297 (Fla. 1st DCA 1977); Department of Revenue v. Young American Builders, 358 So.2d 1096 (Fla. 1st DCA 1989).
Finally, Petitioner challenges the penalty provisions of Rules 7E-409 and 7E-4.25(11)(11), Florida Administrative Code. As previously indicated, Rule 7E-4.09(3), Florida Administrative Code, in addition to providing for denial revocation, or suspension of a license for violation of the rules of the Division, also provides for the imposition of ". . . monetary fines not exceeding $200 . . . for each violation." In addition, Rule 7E-4.25(11)(11), Florida Administrative Code, provides that "[a]ny person breaching the provisions of this rule shall be subject to fine, suspension, or revocation of license.
Section 120.54(14), Florida Statutes, provides, in pertinent part, that "[n]o agency has . . . authority to establish penalties for violation of a rule unless the Legislature, when establishing a penalty, specifically provides that the penalty applies to rule. . . ." Nowhere in Chapter 550, Florida Statutes, does the Legislature authority the imposition by the Division of Pari- Mutuel Wagering of a monetary penalty for violation of its rules. Accordingly, those provisions of Rules 7E-4.09(3) and 7E-4.25(11)(11), Florida Administrative Code, purporting to subject licensees to the imposition of monetary fines for violation of the Division's rules constitutes an invalid exercise of delegated legislative authority. It is equally clear, however, that the Division has both express and implied authority to revoke or suspend licenses. See, Section 550.10(4)(b), Florida Statutes, and Board of Education v. Nelson, 372 So.2d 114 (Fla. 1st DCA 1979).
Based upon the foregoing Findings of Fact and Conclusions of Law, it is determined as a matter of law that Rules 7E-4.02(17)(a), 7E-4.02(23), 7E- 4.25(12)(a) and 7E-4.25(16), Florida Administrative Code, constitutes valid exercises of delegated legislative authority, and that Petitioner's request that they be declared invalid should be, and the same is hereby DENIED.
Additionally, it is determined as a matter of law that those portions of Rules 7E-4.09(3) and 7E-4.25(11)(11), Florida Administrative Code, purporting to authorize the imposition by Respondent of monetary fines for violation of its rules constitute an invalid exercise of delegated authority, in direct violation of Section 120.54, Florida Statutes, and Petitioner's request that those portions of the rules be declared invalid should be, and the same is hereby GRANTED.
DONE AND ORDERED this 20th day of February, 1981 in Tallahassee, Leon County, Florida.
WILLIAM E. WILLIAMS
Filed with the Clerk of the Division of Administrative Hearings this 20th day of February, 1981.
Larry V. Bishins, Esquire 4548 North Federal Highway Fort Lauderdale, Forida 33308
David M. Maloney, Esquire Staff Attorney
Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
Mr. Carroll Webb, Executive Director Administrative Procedures Committee
