STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DANIEL G. HENNESSEY, FRED G. ) WARREN, and CELESTINA M. GANGEMI, )

)

Petitioners, )

)

vs. ) Case Nos. 99-5254RX

) 00-2821RX

DEPARTMENT OF BUSINESS AND ) 00-3809RX PROFESSIONAL REGULATION, DIVISION )

OF PARI-MUTUEL WAGERING, )

)

Respondent. )

)

FINAL ORDER

Pursuant to notice, a formal hearing was held in this case on October 26, 2000, in Tallahassee, Florida, before

Susan B. Kirkland, a designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Cynthia S. Tunnicliff, Esquire

Martha J. Edenfield, Esquire Pennington, Moore, Wilkinson,

Bell & Dunbar, P.A. Post Office Box 10095

Tallahassee, Florida 32302-2095

For Respondent: Joseph M. Helton, Jr., Esquire

Michael M. Mills, Esquire Department of Business and

Professional Regulation Division of Pari-Mutuel Wagering 1940 North Monroe Street Tallahassee, Florida 32399-2202

STATEMENT OF THE ISSUE

Whether Rule 61D-6.002(1), Florida Administrative Code, is an invalid exercise of delegated legislative authority.

PRELIMINARY STATEMENT

On December 10, 1999, Petitioner, Daniel J. Hennessey (Hennessey), filed a Petition for Administrative Hearing Pursuant to Section 120.56(3), Florida Statutes, challenging the validity of Rule 61D-6.002(1), Florida Administrative Code. The case was assigned Division of Administrative Hearings (DOAH) Case

No. 99-5254RX. On July 7, 2000, Petitioner, Fred G. Warren (Warren), filed a Petition for Administrative Hearing Pursuant to Section 120.56(3), Florida Statutes, also challenging the validity of Rule 61D-6.002(1), Florida Administrative Code. The case was assigned DOAH Case No. 00-2821RX. The cases were consolidated by order dated August 7, 2000.

On September 12, 2000, Petitioner, Celestina M. Gangemi (Ms. Gangemi), filed a petition, challenging the validity of Rule 61D-6.002(1), Florida Administrative Code. The case was assigned DOAH Case No. 00-3809RX. On September 13, 2000, the Department of Business and Professional Regulation, Division of Pari-mutuel Wagering (Department) forwarded the request for an

administrative hearing from Ms. Gangemi to DOAH for assignment to an Administrative Law Judge. The request for an administrative hearing related to an administrative complaint the Department filed against Ms. Gangemi, alleging that she violated Subsection

550.2415(1)(a), Florida Statutes. The case was assigned DOAH Case No. 00-3816PL.

All of the above-referenced cases were consolidated for final hearing by order dated September 20, 2000.

The parties entered into a Prehearing Stipulation in which they agreed to the facts contained in paragraphs 1-28 of the Prehearing Stipulation.

At the final hearing, Petitioners in the rule challenge and Respondent in the disciplinary action, hereinafter collectively referred to as Gangemi, submitted Gangemi Exhibits 1-4, which were admitted in evidence. The Department's Exibits 1-13 were admitted in evidence. The depositions of Arthur Monterio, Almarosa deViteri, Walter Hyde, Celestina Gangemi, Daniel Hennessey, Fred G. Warren, and Thomas Tobin were admitted.

Gangemi called Paul Kirsch and David Romanik as witnesses.

The Department called Ian Ronald Tebbett, James Decker, Paul Kirsch, and Gary Rutledge as witnesses.

Official recognition was taken of Chapter 80-270, Laws of Florida; Section 27 of Chapter 92-348 Laws of Florida; Sections 550.2405-550.2616, Florida Statutes (1991); and

Rule 305A-1.35, Florida Administrative Code, as adopted May 28, 1964.

The parties agreed to file proposed final orders within twenty days of either the filing of the Transcript or the filing of the deposition of Walter Hyde, whichever was later. The two-

volume Transcript was filed on November 13, 2000, and the deposition of Walter Hyde was filed on November 14, 2000. The parties filed Proposed Final Orders on December 4, 2000. The Proposed Final Orders have been considered in rendering this Final Order.

FINDINGS OF FACT

1. Hennessey is the holder of an unrestricted U-1 Professional Pari-mutuel License authorizing him to train horses, which license is issued to Hennessey by the Department pursuant to the provisions of Section 550.105, Florida Statutes.

2. Hennessey was charged in a hearing before the Stewards at Pompano Park with violating the provisions of Section 550.2415, Florida Statutes, regarding an impermissible drug found in a race horse entered to race by Hennessey.

3. The disciplinary action was initiated by the Stewards against Hennessey after a post-race urine sample taken from a horse trained by Hennessey won a race at Pompano Park indicated the presence of two substances, caffeine and theophylline, a metabolite of caffeine.

4. Hennessey testified at the hearing before the Stewards that he neither administered nor directed anyone to administer caffeine to the subject horse.

5. Application of Rule 61D-6.002, Florida Administrative Code, makes Hennessey strictly liable for impermissible drugs found in horses he enters to race at pari-mutuel wagering

   facilities in the State of Florida. No evidence of willful administration of caffeine by Hennessey is known to exist.

6. Warren is the holder of an unrestricted U-1 Professional Pari-mutuel License, License Number 0024037-1081, authorizing him to train horses. The license was issued to Warren by the Department pursuant to the provisions of Section 550.105, Florida Statutes.

7. Warren was the trainer of record of a thoroughbred horse named "The Issue is Power," which won the fifth race conducted on November 12, 1999, in Miami, Florida, at the Tropical Park at Calder Race Meeting.

8. After the race concluded, a urine sample, sample number 540322, was taken from "The Issue is Power" at the detention facility operated by the Department.

9. Sample number 540322 was tested by the University of Florida Racing Laboratory, and that sample was found to contain benzoylecgonine, which is a metabolite of cocaine. The estimated concentration of benzoylecgonine was 50 to 54 nanograms per milliliter.

10. Testing of sample number 540322 did not show the presence of egonine methyl ester, which is another metabolite of cocaine.

11. Warren denies that he knowingly or intentionally administered cocaine to the horse "The Issue is Power" at any time.

12. Application of Rule 61D-6.002, Florida Administrative Code, makes Warren strictly liable for impermissible drugs found in horses he enters at pari-mutuel wagering facilities in the State of Florida. No evidence of willful administration of cocaine by Warren is known to exist.

13. Ms. Gangemi, is the holder of an unrestricted U-1 Professional Pari-mutuel License, License Number 0257328-1081, authorizing her to train horses. The license was issued to Ms. Gangemi, by the Department pursuant to the provisions of Section 550.105, Florida Statutes.

14. Ms. Gangemi was the trainer of record of a thoroughbred horse named "Quanchotaug," which finished third in the ninth race race of the matinee performance conducted on July 11, 2000, in Miami, Florida, at Calder Race Course, Inc.

15. After the race concluded a urine sample, sample number 658542, was taken from "Quanchotaug" at the detention facility operated by the Department.

16. Sample number 658542 was tested by the University of Florida Racing Laboratory, and that sample was found to contain benzoylecgonine. The estimated concentration of benzoylecgonine was 10 nanograms per milliliter.

17. A split sample analysis performed by the Center For Tox Services, an independent laboratory in Tempe, Arizona, confirmed the presence of benzoylecgonine in sample number 658542. The

    estimated concentration of benzoylecgonine was 2 nanograms per milliliter.

18. Application of Rule 61D-6.002, Florida Administrative Code, makes Ms. Gangemi strictly liable for impermissible drugs found in horses she enters to race at pari-mutuel wagering facilities in the State of Florida. No evidence of willful administration of cocaine by Ms. Gangemi is known to exist.

19. Testing of sample 658542 did not show the presence of egonine methyl ester.

20. The administration or exposure of cocaine directly into the post-race urine sample of a horse could result in the presence of the metabolite benzoylecgonine.

21. Pompano Park is authorized to conduct pari-mutuel wagering upon harness horse racing pursuant to a permit issued to it by the Department under Section 550.054, Florida Statutes.

22. Tropical Park is authorized to conduct pari-mutuel wagering upon thoroughbred horse racing pursuant to a permit issued to it by the Department under Section 550.054, Florida Statutes.

23. Calder Race Course is authorized to conduct pari-mutuel wagering upon thoroughbred horse racing pursuant to a permit issued to it by the Department pursuant to Section 550.054, Florida Statutes.

24. Horse racing, at its best, is difficult to control, and would be practically impossible to regulate if every governing

    rule and regulation were made dependent for validity upon the knowledge or motives of the person charged with a violation. It would be almost impossible to prove guilty knowledge or intent in cases involving a reported positive test for an impermissible substance.

25. Every consideration surrounding the business of operating a race track, and the racing of horses thereon, seems to call for firm and rigid rules placing responsibility and imposing penalties for their violation.

26. The Department currently has six investigators assigned to cover 35 permitholders. The investigators are well known around the various race tracks they cover, which makes catching possible drug violations in the act almost impossible.

27. The Department's investigators are generally notified of a drug confirmation about ten days after a race has been run. Given that there are so few investigators covering 35 tracks and the reports are received ten days after a race, it would be very difficult to successfully determine who administered a prohibited substance to a horse.

28. The trainer is singularly the best individual to hold accountable for the condition of a horse. The trainer is either going to be with the horse at all times or one of his or her employees or contractors is going to be with the horse at all times, whether the horse is racing on an individual day or is merely stabled at the track. A trainer of racing horses is

    responsible for the animals' athletic conditioning. A trainer is also responsible for providing for the regular care of the horses he trains, including feeding and seeing to the medical needs of the horses. All persons who handle an animal prior to the running of a race are either employees of the track or Department or are employed by or in a professional relationship with the trainer. At no time prior to a race is a trainer or his employer prohibited from seeing to the security of the horse in the paddock. While there are other persons who come in contact with the horse prior to a race, the trainer due to his responsibility for the care and supervision of the animal stands in the best overall position to prevent improper medication of the horse.

29. There is no practical alternative to holding the trainer of record responsible for the condition of the animals he enters to race. The Department's authority to require the return of a purse is insufficient to deter wrongdoers from attempting to affect the outcome of a race. The integrity of the pari-mutuel industry would suffer from the Department's inability to enforce statutes relating to the drugging of racing animals.

    CONCLUSIONS OF LAW

    
    

30. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this proceeding. Section 120.56, Florida Statutes.

31. Petitioners challenge the validity of Rule 61D- 6.002(1), Florida Administrative Code, known as the Absolute Insurer Rule, which, provides:

    The trainer of record shall be responsible for and be the absolute insurer of the condition of the horses or racing greyhounds, he/she enters to race. Trainers, kennel owners and operators are presumed to know the rules of the division.

    
    

32. Petitioners have standing pursuant to Section 120.56, Florida Statutes, to bring this rule challenge.

33. Pursuant to Subsection 120.56(3), Florida Statutes, the party challenging existing rules has the ultimate burden to establish that the rule is an invalid exercise of delegated legislative authority. Subsection 120.52(8), Florida Statutes, provides:

    1. "Invalid exercise of delegated legislative authority" means action which goes beyond the powers, functions, and duties delegated by the Legislature. A proposed or existing rule is an invalid exercise of delegated legislative authority if any one of the following applies:

       1. The agency has materially failed to follow the applicable rulemaking procedures or requirements set forth in this chapter;

       2. The agency has exceeded its grant of rulemaking authority, citation to which is required by s. 120.54(3)(a)1.;

       3. The rule enlarges, modifies, or contravenes the specific provisions of law implemented, citation to which is required by s. 120.54(3)(a)1.;

       4. The rule is vague, fails to establish adequate standards for agency decisions, or vests unbridled discretion in the agency;

       5. The rule is arbitrary or capricious;

       6. The rule is not supported by competent substantial evidence; or

       7. The rule imposes regulatory costs on the regulated person, county, or city which could be reduced by the adoption of less costly alternatives that substantially accomplish the statutory objectives.

          
          

          A grant of rulemaking authority is necessary but not sufficient to allow an agency to adopt a rule; a specific law to be implemented is also required. An agency may adopt only rules that implement or interpret the powers and duties granted by the enabling statute. No agency shall have authority to adopt a rule only because it is reasonably related to the purpose of the enabling legislation and is not arbitrary and capricious or is within the agency's class of powers and duties, nor shall an agency have the authority to implement statutory provisions setting forth general legislative intent or policy. Statutory language granting rulemaking authority or generally describing the powers and functions of an agency shall be construed to extend no further than implementing or interpreting the specific powers and duties conferred by the same statute.

34. Petitioners contend that there is no statutory authority for the promulgation of Rule 61D-6.002(1), Florida Administrative Code. Petitioners' argument is without merit. In the recent decision, Southwest Florida Water Management District v. Save the Manatee Club, Inc., 2000 WL 1760116 (Fla. 1st DCA 2000), the court discussed the 1999 amendments to

    Subsection 120.52(8), Florida Statutes, and stated:

    
    

    One significant feature of the new statute is that it contains an additional statement of the factors that are not sufficient to justify the adoption of an administrative rule. Section 120.52(8) now provides that an agency shall not have authority to adopt a rule merely because the rule "is within the agency's class of powers and duties." By

    including this language in the 1999 version of the statute, the Legislature has rejected the standard we adopted in Consolidated Tomoka. An administrative rule must certainly fall within the class of powers and duties delegated to the agency, but that alone will not make the rule a valid exercise of legislative power.

    Another important aspect of the new statute is that it modifies the standard for determining whether the rule is a valid exercise of legislative authority. Section 120.52(8) now provides that "an agency may adopt only rules that implement or interpret the specific powers and duties granted by the enabling statute." The parties suggested various interpretations of this new language based on the legislative history of the statute, but we conclude that it would be improper to construe the statute beyond its terms. A court may resort to extrinsic aids in determining legislative intent only if the language used in a statute is ambiguous. See Holly v. Auld, 450 So. 2d 217 (Fla. 1984); Rhodes v. State, 704 So. 2d 1080 (Fla. 1st DCA 1997). The limitation in section 120.52(8) to rules that implement or interpret specific powers and duties granted by the enabling statute is clear and unambiguous. Consequently, we have no reason to add our own view of the legislative intent.

    In the absence of a special statutory

    definition, we may assume that the word "specific" was used according to its ordinary dictionary definition. See WFTV v. Wilken, 675 So. 2d 674 (Fla. 4th DCA 1996). The

    ordinary meaning of the term "specific" is "limiting or limited; specifying or specified; precise, definite,[or] explicit." See Webster's New World College Dictionary 1287 3rd Ed. 1996. "Specific is used as an adjective in the 1999 version of section 120.52(8) to modify the phrase "powers and duties." In the context of the entire sentence, it is clear that the authority to adopt an administrative rule must be based on an explicit power or duty identified in the enabling statute. Otherwise the rule is not

    a valid exercise of delegated legislative authority.

    All of the litigants in this case agree that the term "specific" was not used in the 1999 version of the statute as a synonym for the term "detailed." We reached the same conclusion in Consolidated-Tomoka, in our interpretation of the 1996 statute, and that part of our decision appears to have survived. The new law gives the agencies to "implement or interpret" specific powers and duties contained in the enabling statute. A rule that is used to implement or carry out a directive will necessarily contain language more detailed than that used in the directive itself. Likewise, the use of the term "interpret" suggests that a rule will be more detailed than the applicable enabling statute. There would be no need for interpretation if all of the details were contained in the statute itself.

    It follows that the authority for an

    administrative rule is not a matter of degree. The question is whether the statute contains a specific grant of legislative authority for the rule, not whether the grant of authority is specific enough. Either the enabling statute authorizes the rule at issue or it does not. . . .

    
    

35. Rule 61D-6.002, Florida Administrative Code, cites Subsections 120.80(4)(a), 550.0251(3), and 550.2415(2), and(13), Florida Statutes, as specific authority for the rule and Sections 550.0251, 550.2415 and 120.80(4), Florida Statutes, as the law implemented.

36. Subsections 550.2415(1), (2), and (13), Florida Statutes, provide:

    (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 person 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 animal

    immediately prior to or immediately 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 after testing of all samples collected on a particular day has been completed and any positive test results derived from such samples have been reported to the director of the division or administrative action has been commenced.

    1. It is a violation of this section for a race-day specimen to contain a level of naturally occurring substance which exceeds normal physiological concentrations. The division may adopt rules that specify normal physiological concentrations of naturally occurring substances in the natural untreated animal and rules that specify acceptable levels of environmental contaminants and trace levels of substances in test samples.

    2. The finding of a prohibited substance in a race-day specimen constitutes prima facie evidence that the substance was administered and was carried in the body of the animal while participating in the race.

    (2) Administrative action may be taken by the division against an occupational licensee responsible pursuant to a rule of the division for the condition of an animal that has been impermissibly medicated or drugged in violation of this section.

    * * *

    (13) The division shall adopt rules to implement this section. The rules may include a classification system for prohibited substances and a corresponding penalty schedule for violations.

37. Section 550.0251, Florida Statutes, sets forth the powers and duties of the Department. Subsection (3) provides:

    The Division shall administer this chapter and regulate the pari-mutuel industry under this chapter and the rules adopted pursuant thereto, and;

    * * *

    (3) The division shall adopt reasonable 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.

38. Section 550.2415, Florida Statutes, deals with the racing of horses which have been impermissibly medicated or drugged. Subsection 550.2415(13), Florida Statutes, provides authority for the Department to adopt rules to implement Section 550.2415, Florida Statutes. Subsection 550.0251(3),

    Florida Statutes, provides authority to implement reasonable rules for the control, supervision and direction of licensees and permittees, and for the holding, conducting, and operating of all races. Subsection 550.2415(2), Florida Statutes, allows the Department to promulgate a rule which makes a licensee responsible for the condition of a horse that has been impermissibly medicated or drugged. The plain reading of Subsection 550.2415(2), Florida Statutes, makes it clear that the Department has the authority to hold a trainer responsible for the condition of the horses which he trains and races if those horses are raced with any drug, medication, stimulant, depressant, hypnotic, narcotic, local anesthetic, or drug-masking

    agent. Subsection 550.2415(2) does not require that the trainer be the person who administered or caused to be administered the drug or medication. Thus, Rule 61D-6.002(1), Florida Administrative Code, does not exceed the grant of rulemaking authority granted to the Department and does not enlarge, modify, or contravene the specific provisions of law which it implements.

39. Petitioners argue that the addition of

    
    

    Subsection 550.2415(1)(c), Florida Statutes, by the Legislature in 1992, precludes the Department from holding the trainer absolutely liable for the drugged or medicated condition of a horse while racing. Subsection (c) allows the finding of a prohibited substance in a race-day specimen to be sufficient evidence to establish, unless contradicted by other evidence, that the horse was racing with a prohibited substance in its body. It does not go to the issue of whether the trainer may be held liable if the horse did race with a prohibited substance in its body. Thus, the Department has not enlarged, contravened, or modified provisions of Section 550.2415, Florida Statutes, with the promulgation of Rule 61D-6.002(1), Florida Administrative Code.

40. Petitioners argue that the challenged rule is not supported by competent, substantial evidence. In Chapter 80-270, Section 1, Laws of Florida, the Legislature made the following findings:

    1. The practice of drugging or medicating a racing animal prior to a race:

       1. Corrupts the integrity of the sport of racing and promotes criminal fraud in such sport,

       2. Misleads the wagering public and those desiring to purchase such animal as to the condition and ability of such animal,

       3. Poses an unreasonable risk of serious injury or death to the rider of such animal if a horse and to the riders of other horses competing in the same race, and

       4. Is cruel and inhumane to the animal drugged or medicated;

    2. The practice of drugging or medicating a racing animal prior to a race adversely affects the interests of the state; and

    3. Criminal penalties and other sanctions are necessary to prevent and eliminate such practices.

41. In Division of Pari-mutuel Wagering v. Cable, 362 So. 2d 1350 (Fla. 1978), the Florida Supreme Court upheld rules imposing strict liability on horse trainers for compliance with applicable regulations. The Court stated:

    On review of these more recent authorities, we are now persuaded that Florida should align itself with the well-reasoned majority view. To protect the integrity of this unique industry, it is really immaterial whether "guilt" should be ascribed either directly or indirectly to the trainer. The rules were designed, and reasonably so, to condition the grant of a trainer's license on the trainer's acceptance of an absolute duty to ensure compliance with reasonable regulation governing the areas over which the trainer has responsibility. 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 the licensure has been violated by the failure to provide adequate control, and the consequence of the default is possible of the trainer's license or 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 reasonable and constitutional.

    
    

    Id. at 1354-55.

    
    

42. In Solimena v. Department of Business and Professional Regulation, 402 So. 2d 1240 (Fla. 1st DCA 1981), the court upheld the validity of Rules 7E-1.18(3) and 7E-1.06(11)(a), Florida Administrative Code, finding that Subsection 550.02(3), Florida Statutes (1977), constituted a valid delegation of authority to the agency. Rule 7E-1.18(3), Florida Administrative Code, provided:

    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.

    
    

43. Rule 7E-1.06(11)(a), Florida Administrative Code, provided:

    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, internally or externally, to a horse before a race, such stewards shall impose such punishment and take such other action as they 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 medication in his system.

    
    

44. In Solimena, the court found that Rules 7E-1.18(3) and 7E-1.06(11)(a), Florida Administrative Code, reflected the intent of the Legislature to prevent the use of drugs to influence racing results.

45. In Chapter 80-270, Laws of Florida, the Legislature created Section 550.241, Florida Statutes. Subsection 550.241(1), Florida Statutes, is similar to Rule 7E-1.06(11)(a), Florida Administrative Code, relating to the prohibition of racing horses who have been impermissibly medicated or drugged. Additionally, the newly created statute gave the agency the authority to take disciplinary action against licensees that the Department makes responsible for the condition of the race animal. In Subsections 550.241(3)(b) and (c), Florida Statutes, the Legislature also gave the Department authority to summarily suspend a licensee who was responsible for the condition of a horse in which the laboratory reported impermissible substances in the horse based on a race-day specimen. The licensee would be given an opportunity for a post-suspension hearing at which the Department was to produce the laboratory results and the documentation, which on its face, established the responsibility of the licensee. The licensee has the burden to prove his lack of responsibility. It should be noted that the legislature did not require the Department establish that the licensee had knowledge of the drugging of the animal, but required the

    Department to establish that the licensee was the one responsible for the horse.

46. Given the purpose of the legislation regarding the drugging and medicating of race horse and the difficulty of establishing who actually administered the prohibited substance, Rule 61D-6.002(1), Florida Administrative Code, is neither arbitrary or capricious and is supported by competent substantial evidence.

47. In Solimena, supra, the court stated that when the Legislature is dealing with police power and occupations which are practiced by privilege rather than right and which are potentially injurious to the public welfare, a specific standard may not be expressed and the standard of reasonableness is applied. Subsection 550.02(3), Florida Statutes, allows the Department to promulgate reasonable rules for the direction, supervision and control of licensees. Thus, the standard by which Rule 61D-6.002(1), Florida Administrative Code, is to be reviewed is a standard of reasonableness. Rule 61D-6.002(1), Florida Administrative Code, is not vague, is reasonable, and does not vest unbridled discretion in the Department.

48. Rule 61D-6.002(1), Florida Administrative Code, is a valid exercise of delegated legislative authority.

ORDER

Based on the foregoing Findings of Fact and Conclusions of Law, it is ORDERED Petitioners have failed to establish that

Rule 61D-6.002(1), Florida Administrative Code is an invalid exercise of delegated legislative authority and their petition is hereby dismissed.

DONE AND ORDERED this 4th day of January, 2001, in Tallahassee, Leon County, Florida.

SUSAN B. KIRKLAND

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 4th day of January, 2001.

COPIES FURNISHED:

Cynthia S. Tunnicliff, Esquire Martha J. Edenfield, Esquire Pennington, Moore, Wilkinson,

Bell & Dunbar, P.A. Post Office Box 10095

Tallahassee, Florida 32302-2095

Joseph M. Helton, Jr., Esquire Michael M. Mills, Esquire Department of Business and

Professional Regulation, Division of Pari-Mutuel Wagering 1940 North Monroe Street Tallahassee, Florida 32399-2202

Dr. Paul Kirsch, Director Division of Pari-Mutuel Wagering Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Barbara D. Auger, General Counsel Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Carroll Webb

Executive Director and General Counsel Joint Administrative Procedures Committee Holland Building, Room 120

Tallahassee, Florida 32399-1300

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final Order is entitled to judicial review pursuant to Section 120.68, Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing one copy of a Notice of Appeal with the agency clerk of the Division of Administrative Hearings and a second copy, accompanied by filing fees prescribed by law, with the District Court of Appeal, First District, or with the District Court of Appeal in the appellate district where the party resides. The Notice of Appeal must be filed within 30 days of rendition of the order to be reviewed.

Docket for Case No: 99-005254RX

Orders for Case No: 99-005254RX