ROBERT G. DAWSON,
vs.
Case No. 14-5276RU
DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION, DIVISION OF PARI-MUTUEL WAGERING,
Respondent.
On December 9, 2014, a duly-noticed hearing was held by video teleconference at sites in West Palm Beach and Tallahassee, Florida, before F. Scott Boyd, an Administrative Law Judge assigned by the Division of Administrative Hearings.
Jeremy E. Slusher, Esquire Kubicki Draper
For Respondent: Marisa G. Button, Esquire
Jason L. Maine, Esquire Department of Business and
The first issue is whether the Greyhound Veterinary Assistant Procedures Manual published by the Division of Pari- Mutuel Wagering ("Division Manual") constitutes an unadopted rule in violation of section 120.54(1)(a), Florida Statutes (2014).1/ Petitioner further contends that the agency materially failed to follow applicable rulemaking procedures with respect to the Division Manual; that it is vague, fails to establish adequate standards for agency decisions, invests unbridled discretion in the agency; and is arbitrary and capricious, in violation of sections 120.52(8)(a), (d), and (e).
A second issue is whether Florida Administrative Code Rule 61D-6.002 is an invalid exercise of delegated authority because it enlarges, modifies, or contravenes the provisions of section 550.0251(3), Florida Statutes; is vague, fails to establish adequate standards for agency decision, or vests unbridled discretion in the agency; or is arbitrary and
capricious, in violation of sections 120.52(8)(c), (d), and (e). Petitioner further contends that rule 61D-6.002 violates Petitioner's due process rights and is therefore unconstitutional.
Petitioner, a licensed greyhound trainer, filed these rule challenges on November 7, 2014. The case was duly-noticed for
hearing on December 9, 2014. Respondent filed a Motion to Abate, noting that a Notice of Rule Development for Florida Administrative Code Rule 61D-6.005 had been filed and arguing that the rule challenges should be abated pending that rulemaking. A telephonic motion hearing was held, and an Order Denying Respondent's Motion to Abate was subsequently issued on December 2, 2014. The parties filed a Joint Pre-hearing Stipulation. The agreed-upon facts were accepted at hearing and are included among the Findings of Fact below. Petitioner presented the testimony of three witnesses: Ms. Jamie Testa, a kennel helper for Northshore Kennel; Mr. Arthur Agganis, owner of Agganis Kennels and Petitioner's employer; and Mr. Jorge Callejas, Respondent's southern regional manager of greyhound tracks. Petitioner's Exhibits P-1 through P-11 and P-13 through P-21 were admitted into evidence. Petitioner's Exhibit P-12, the transcript of an earlier video teleconference hearing, was not admitted. Respondent presented the testimony of two witnesses: Mr. Andre Tribble, an investigator with Respondent; and Ms. Jill Blackman, chief operations officer for Respondent.
Respondent did not offer any exhibits. Official recognition was given to the fact that Respondent filed a notice of r ule
development for existing rule 61D-6.005, as well as to the Order of the Division of Administrative Hearings (DOAH) in Department of Business and Professional Regulation, Division of Pari-
Mutuel Wagering v. Alves, Case Nos. 11-1578PL, 11-1579PL (Fla. DOAH Sept. 19, 2011; Fla. DBPR Oct. 12, 2011). The
one- volume Transcript of Proceedings was filed on December 29, 2014. The one-volume Amended Transcript of Proceedings was filed on January 9, 2015. Proposed final orders were timely submitted by both parties and were carefully considered.
Petitioner, Mr. Robert Dawson, is the holder of an Unrestricted U-1 Professional Pari-Mutuel License authorizing him to train racing greyhounds pursuant to section 550.105, Florida Statutes.
Mr. Dawson is subject to chapter 550 and the administrative rules promulgated thereunder in Florida Administrative Code Chapter 61D.
Respondent, the Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering ("Division"), is a state agency delegated the responsibility for the implementation and enforcement of Florida's pari-mutuel laws under chapter 550, including the licensing and regulation of all pari-mutuel activities in Florida.
In the past, the Division used to take urine samples from dogs after a race, usually from the winner. The dogs to be tested would be announced, and the owner or his representative
could then witness the sample collection and sign indicating that he had witnessed the sample being taken.
In late 2008, the Division changed the procedures that it follows and began to take pre-race samples. Mr. Jorge Callejas testified that many dogs tend to urinate prior to the race, and it was noted that, after a race, they were tired and not as interested in urinating. The Division had monitored statistics and found that with post-race collections, the number of samples that did not have a sufficient quantity for testing was very high. After switching to pre-race testing, the number of untestable samples went down significantly. At that time, they began using an earlier version of the Division Manual, which sets forth procedures to be followed by veterinary assistants employed by the Division working with the racing greyhound program.
The Division now conducts random pre-race urine sample collections at all of its licensed greyhound race tracks.
The Division uses the Division Manual at all greyhound racing facilities in the state of Florida.
The Division provides the Division Manual to its veterinary technicians working at the licensed greyhound race tracks.
The Division Manual was last amended on March 31, 2010.
The Division Manual is properly attributable to the Division as an institution.
The Division filed two administrative complaints against Mr. Dawson for violations of section 550.2415, which are pending before DOAH with case numbers 14-4450PL and 14-4719PL.
Trainers of dogs with a positive urine test can face severe sanctions.
As a greyhound trainer, Mr. Dawson's responsibilities include feeding the dogs, examining them for injuries, keeping them at the proper weight, preparing them for weigh-in before each race, and keeping them healthy. Occasionally, he also personally takes the dogs to the track.
On a race day, the dogs are typically walked, cleaned up by a kennel helper, weighed-in, and then given to the "leadouts." Leadouts are not employed by the individual kennels, but are employed by the track. The leadouts place the dogs in the ginny pit area, sometimes called the lock-up, an area where the dogs stay until their scheduled race. Trainers and kennel helpers are not allowed in the ginny pit area. Trainers and helpers therefore have no access to their dogs for an extended period of time until the race begins and have no control over the employees of the track (leadouts and kennel master) who do have access to the dogs during that time.
Pre-race urine specimens are randomly taken from dogs in an outdoor, fenced area adjacent to the ginny pit building by veterinary assistants employed by the Division. This area is open to view by the public, including trainers or their helpers, but only track employees and Division personnel are allowed access to the area. The area where trainers have to be to pick up their dogs is on the opposite side of the building, and from this location, the view of the open area where samples are taken is blocked by the building.
Trainers and helpers are routinely occupied with their other dogs and do not have time to watch the pre-race sample collection, especially since they do not know if one of their dogs will be sampled or not.
The Division does not individually notify each trainer of record or kennel worker for racing animals when random pre- race urine collection will occur.
Trainers and kennel workers are not advised that their greyhounds are going to be tested on a particular day.
The Palm Beach Kennel Club does not have video cameras in place that would allow trainers or their helpers to view the dogs while they are in the ginny pit area. Mr. Arthur Agganis, as president of the Palm Beach Greyhound Association, petitioned the general manager to put in some cameras, at the association's expense, but no cameras have been installed. There is a camera
in the open area where samples are collected, but trainers and helpers cannot view the feed from this camera.
In horseracing, horse trainers are not prohibited from physically accessing their horses prior to the start of each horse's race.
As the southern regional manager of greyhound tracks, Mr. Callejas visits the tracks under his responsibility and ensures that each track is following the Division Manual's sampling and testing procedures, including the chain-of-custody procedures.
Ms. Jill Blackman testified that the Division Manual was a guideline used for training veterinary assistants in the field.
Section 3 of the Division Manual ("Section 3") consists of nine subsections: 3.1 Greyhound Sampling Priority;
3.2 The Collection Process; 3.3 Meeting and Identifying the Greyhound; 3.4 Collecting the Specimen; 3.5 Sealing the Sample;
3.6 Completing the Required Forms; 3.7 Storing the Sample;
3.8 Preparing Samples for Shipment; and 3.9 Shipment of Samples.
After the veterinary assistant identifies the dog and collects the sample, the sample is sealed in the cup with evidence tape, labeled, and taken to a freezer in the veterinary assistant's office, where it is locked up.
Section 3 does not require the Division to advise trainers of when urine sample collection occurs.
Section 3 does not require the Division to ensure that the trainer witness the urine sample collection process or to ensure that the Division obtain the trainer's signature on the specimen card.
The Division Manual states on page six that one of the primary duties of the veterinary assistant is to "study and put into practice the procedures outlined in this manual." It goes on to emphasize the importance that all those collecting urine samples understand the proper procedures, and "follow those procedures EACH AND EVERY TIME."
Section 3 states at page ten, "Those collecting samples must follow strict chain-of-custody procedures in order to stand as credible evidence in a judicial proceeding." It then goes on to prescribe a "strict sequence of events" that must be followed to ensure that samples are properly collected, sealed, and secured to avoid tampering or alteration. It sets forth procedures to correctly identify a greyhound by the numbers tattooed on its ear, prepare required forms, store collected samples, prepare them for shipment, and maintain the security of the backside areas.
Division employees do not have discretion not to follow the Division Manual; its provisions are mandatory and enforced by the Division.
The integrity of greyhound racing in Florida is important to citizens betting on the outcome of races and to the dog owners, trainers, and other employees who earn their livelihood in the industry. The procedures followed to collect samples and otherwise ensure the integrity of the sport are important to dog trainers and to the public.
A notice of rule development for existing rule 61D- 6.005, entitled Procedures for Sampling of Racing Animals, has been published.
Mr. Dawson, as a dog trainer subject to possible discipline under the "absolute insurer" rule, 61D-6.005, is substantially affected by the sample collection and testing procedures of Section 3. He has alleged a real and sufficiently immediate injury in fact. Chapter 550 contains procedures such as "split sampling" to protect trainers and ensure integrity of the testing process, and Mr. Dawson comes within the zone of interest of chapter 550.
In his petition, Mr. Dawson sufficiently alleged that Section 3 of the Division Manual was an unadopted rule and attached a copy of it to his petition.
Section 3 constitutes a rule within the definition of section 120.52(16).
Section 3, or a substantially similar statement reflecting the Division's sample collection process for racing greyhounds, has not been adopted as a rule under chapter 120.
It is practicable and feasible to adopt Section 3 as a rule.
Rule 61D-6.005 is uniform in its application and effect. The rule is not vague, does not fail to establish adequate standards for Division decisions, or vest unbridled discretion in the Division. The rule is not arbitrary or capricious.
CONCLUSIONS OF LAW
Standing and Jurisdiction
In administrative proceedings, standing is a matter of subject matter jurisdiction. Abbott Labs. v. Mylan Pharm.,
Inc., 15 So. 3d 642, 651 n.2 (Fla. 1st DCA 2009). Section
120.56(4) provides that "[a]ny person substantially affected by an agency statement may seek an administrative determination that the statement violates s. 120.54(1)(a)."
In order to establish standing, a challenger must show an immediate "injury in fact" within the "zone of interest" protected by the statute the alleged unadopted rule is implementing, or another statute. See, e.g., Fla. Med. Ass'n,
Inc. v. Dep't of Prof'l Reg., 426 So. 2d 1112, 1114 (Fla. 1st
DCA 1983).
Respondent urges that Petitioner has no standing to bring this unadopted rule challenge because the Division Manual by its own terms is "an internal training guideline for veterinary assistant employees" of Respondent and so does not directly regulate the activities of Petitioner. However, "[t]he breadth of the definition in Section 120.52(14) indicates that the legislature intended the term to cover a great variety of agency statements regardless of how the agency designates them." Dep't of Admin. v. Harvey, 356 So. 2d 323, 325 (Fla. 1st DCA 1977).
Even where a challenged rule or its promulgating statute does not establish requirements to engage in a given profession, or otherwise directly regulate it per se, members of that profession have been found to be substantially affected when the rule nevertheless directly affects the professional conduct of persons within that occupation. Ward v. Bd. of Trs. of the Int. Imp. Trust Fund, 651 So. 2d 1236, 1237 (Fla. 4th DCA
1995)(engineer who frequently designed docks was substantially affected by proposed rules governing construction of docks and piers, even though not directly regulated by the rules). See also Fed'n of Mobile Home Owners v. Fla. Manufactured Hous.
Ass'n, 683 So. 2d 586, 592 (Fla. 1st DCA 1996)(a prospectus is
such a fundamental element of the mobile home park business that the procedures required to amend a prospectus have a direct impact on the business).
Lanoue v. Florida Department of Law Enforcement, 751 So. 2d 94, 96 (Fla. 1st DCA 1999), is instructive. An operator of a motor vehicle was arrested based upon the results of a breath test that had been administered pursuant to the implied consent law. He challenged the rules governing maintenance and calibration of the breath-test machine and the procedures used to inspect it, as well as an unadopted rule relating to approval of providers of the alcohol reference solution that was used to test the machines. The ALJ found that the driver did not establish a real and immediate injury in fact, and so did not show that he was substantially affected by the challenged rules and non-rule policy.
The First District reversed. The court noted that the statutes required the tests to be conducted substantially according to methods set forth in rules of the Department of Law Enforcement. The statute further provided that specified test results gave rise to a rebuttable presumption that the person was under the influence of alcoholic beverages to the extent that his or her normal faculties were impaired and that, should a person be found guilty of this offense, penalties could be imposed. Under these facts, the court found that Lanoue had
alleged a real and sufficiently immediate injury in fact and was within the zone of interest governed by those statutes and rules.2/ See also Cole Vision Corp. v. Dep't of Bus. & Prof'l
Reg., 688 So. 2d 404, 407 (Fla. 1st DCA 1997)(appellants were substantially affected by a rule because they were potentially exposed to legal action and monetary penalties through its implementation).
The facts here are quite similar to those in Lanoue.
Petitioner's racing dogs are subject to drug testing. He has been charged with violations based upon the results of a urine test administered pursuant to chapter 550. Petitioner has alleged that Respondent has unadopted rules that govern the procedures for taking and testing those urine samples.
Contrary to the assertion of Respondent, Section 3 does not merely mimic the statute. The statute does not set out the detailed procedures for taking and testing samples. In fact, Respondent is specifically directed to adopt rules to implement the section of the statute dealing with the racing of animals with prohibited medications or drugs. § 550.2415(12), Fla. Stat.
The statute provides that 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 during a race. § 550.2415(1)(c), Fla. Stat.
The statute also provides that when a racing animal has been impermissibly medicated or drugged, Respondent may take administrative action against licensees that rules of Respondent make responsible for the condition of the racing dogs.
§ 550.2415(2), Fla. Stat. In furtherance of this statute, Respondent has adopted rule 61D-6.002, the "absolute insurer rule" making trainers responsible. Significant sanctions may be imposed upon violators. § 550.2415(3)(a), Fla. Stat.
In short, if procedures misidentify the tested sample, or it is tainted, or test results are unreliable, Petitioner could be wrongly penalized. Petitioner is substantially affected by the procedures for taking and testing urine samples set forth in Section 3 and has standing to try to show that it constitutes an unadopted rule.
Respondent next argues, based on United Wisconsin Life
Insurance Co. v. Department of Insurance, 831 So. 2d 239 (Fla. 1st DCA 2002), that because two administrative complaints have been filed against Petitioner, he has a remedy through his affirmative defenses in those cases and that the unadopted rule challenge here is simply an impermissible collateral attack.
Respondent reads United Wisconsin too broadly. In
that case, the unadopted rule challenge was brought against the
very statement of charges in the Administrative Complaint against United Wisconsin. Significantly, there was no showing that these charges, directed only to United Wisconsin and alleging facial violation of statutory provisions, were in any way statements of "general applicability." The court specifically noted that the issues raised by the Administrative Complaint arose for the first and only time as a result of United Wisconsin's actions. The court went on to note, that "on the present facts," the unadopted rule challenge constituted only a collateral challenge.
Petitioner here challenges as an unadopted rule, not charges in an administrative complaint,3/ but instead the provisions of a manual prepared and distributed by Respondent and alleged to be generally applicable to all dog tracks in Florida. Were United Wisconsin to be read so broadly as to preclude an unadopted rule challenge to such external documents just because administrative charges have also been filed, the provisions of section 120.56(4) would be eviscerated, and the unique legislative policy goals4/ of that statutory section would never be achieved.
Respondent does not contest Petitioner's standing to challenge rule 61D-6.002. As a dog trainer subject to that rule's provision making a trainer legally responsible for, and the "absolute insurer" of, the condition of his racing
greyhounds, Petitioner has standing to challenge rule 61D-6.002. Ward v. Bd. of Trs. of the Int. Imp. Trust Fund, 651 So. 2d 1236, 1237 (Fla. 4th DCA 1995)(standing is recognized where challenged rule directly regulates the challenger's occupational field).
The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding. § 120.56(4) Fla. Stat.
Burden and Standard of Proof
The burden is on Petitioner to show that Section 3 constitutes a rule within the meaning of section 120.52(16) and that Respondent has not adopted it under applicable rulemaking procedures. § 120.56(4)(a), Fla. Stat. If Petitioner succeeds, the burden then shifts to Respondent to prove that rulemaking is not feasible or practicable. § 120.56(4)(b), Fla. Stat.
The burden is on Petitioner to show that rule 61D-
6.002 is an invalid exercise of delegated legislative authority under section 120.52(8).
The standard of proof is by a preponderance of the evidence. § 120.56(1)(e), Fla. Stat.
Unadopted Rule Challenge
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 solicits any information not specifically required by statute or by an existing rule. The term also includes the amendment or repeal of a rule. The term does not include:
Internal management memoranda which do not affect either the private interests of any person or any plan or procedure important to the public and which have no application outside the agency issuing the memorandum.
This definition contains several overlapping elements.
Agency Statement
A petition challenging a statement as an unadopted rule must include the text of the statement or a description of it. A statement may be in any form and does not need to be in writing. Dep't of High. Saf. & Motor Veh. v. Schluter, 705 So.
2d 81, 84 (Fla. 1st DCA 1997). Petitioner sufficiently identified Section 3 and attached a copy of it to his petition.
The statement must be shown to be an "agency" statement. First, the statement must be an expression of the agency as an institution, not merely the position of an employee acting on his own. It must be properly attributable to the agency head or some duly-authorized delegate. Id. at 87
(Benton, J., concurring and dissenting). Second, even if a
statement is issued by the agency, it does not constitute an agency statement if it is merely a reiteration or restatement of policy already clearly established by the implemented statute.
St. Francis Hosp., Inc. v. Dep't of HRS, 553 So. 2d 1351 (Fla. 1st DCA 1989). However, if the statement is not simply restating policy set forth in the statute, but instead expands upon it or "places upon the statute an interpretation that is not readily apparent from its literal reading," then the statement represents agency policy. Id. at 1354. An agency statement simply explaining how an existing policy will be applied to a particular set of facts is not itself a rule, however. Envtl. Trust v. Dep't of Envtl. Prot., 714 So. 2d 493,
498 (Fla. 1st DCA 1998). The Division Manual is a statement of Respondent and Section 3 establishes procedures not set forth in the statute or adopted rule of Respondent. Section 3 is a statement of Division policy.
General Applicability
The requirement that a statement must be one of general applicability has several facets. It involves first the field of operation of the statement. Dep't of Com. v. Matthews Corp., 358 So. 2d 256 (Fla. 1st DCA 1978)(wage rates applicable
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 elsewhere in the state into the
future). But a statement need not have "universal" applicability or "unlimited" length of operation. It is sufficient if the statement applies to a uniform class of persons or activities for a discernible period, as opposed to only select individuals or factual situations in a single instance. Balsam v. Dep't of HRS, 452 So. 2d 976 (Fla. 1st DCA 1984)(moratorium on certificate of need applications, consistently applied during only a short period, held to be a rule). Fla. Pub. Serv. Comm'n v. Central Corp., 551 So. 2d 568 (Fla. 1st DCA 1989)(temporary requirement that alternative operator services hold revenues in excess of local exchange rates subject to refund was generally applicable). As succinctly stated in Florida Quarter Horse Racing Association, Inc. v. Division of Pari-Mutuel Wagering, Case No. 11-5796RU
(Fla. DOAH May 6, 2013), aff'd, 133 So. 3d 1118 (Fla. 1st DCA
2014), "A generally applicable statement purports to affect, not just a single person or singular situations, but a category or class of persons or activities." The current Division Manual has been applicable to all licensed greyhound racing tracks in the state of Florida since March 31, 2010.
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. State Bd. of Admin. v. Huberty, 46 So. 3d 1144, 1147
(Fla. 1st DCA 2010). Section 3 directly affects the rights of a trainer accused of violating provisions related to the racing of greyhounds that are impermissibly medicated or drugged. As the Division Manual itself asserts, the purpose for dictating detailed procedures to be used in collecting and testing samples is precisely to ensure reliable scientific evidence to be used in future disciplinary proceedings. These procedures thus directly affect the rights of a trainer charged with a violation, especially given that the statutory presumption, in conjunction with the "absolute insurer" rule, instills the test results with such a significant, almost determinative, effect.
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 three of the challenged policies not to be generally applicable because an employee's supervisor was not required to apply them, and therefore they could not be considered to have the "direct and consistent effect of law." See also Ag. for
Health Care Admin. v. Custom Mobility, Inc., 995 So. 2d 984, 986 (Fla. 1st DCA 2008)(Medicaid overpayment formula was not an unadopted rule because the agency personnel could choose whether or not to use it); 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).
Respondent's employees have no discretion not to follow Section 3, and it is consistently applicable.
Implements, Interprets, or Prescribes
Section 3 goes beyond the general language of
section 550.2415 to establish specific procedures to be followed in collecting and testing urine samples from racing greyhounds. It implements this statutory section and establishes Division policy as to the exact procedures to be used. Respondent is specifically directed to adopt rules to implement section 550.2415. § 550.2415(12), Fla. Stat. Cf. Bigelow v. Dep't of
Envtl. Reg., 375 So. 2d 12, 13 (Fla. 4th DCA 1979)(explicit statutory requirement that agency adopt rules invalidated action taken in absence of rule).
Internal Management Memorandum
Section 120.52(16) expressly excludes certain agency statements from the definition of "rule." Respondent asserts that even if Section 3 otherwise would be a rule, it is excluded from the definition because it is an internal management memorandum. Internal management memoranda are excluded if they do not affect either the private interests of any person or any plan or procedure important to the public and have no
application outside the issuing agency. § 120.52(16)(a), Fla. Stat.
Respondent cites Department of Revenue v. Novoa, 745
So. 2d 378, 381 (Fla. 1st DCA 1999), in which the court considered whether the Department of Revenue's policy restricting its employees from preparing tax returns for private parties during their non-working hours was an internal management memorandum. The court found:
The Department's policy does not "affect
. . . a plan or procedure important to the public." Members of the general public have no arguable interest in the restrictions an administrative agency imposes on its own employees. Likewise, the policy does not apply "outside the agency." Because the policy applies only to employees of the Department, no person or firm outside the Department could possibly be affected by it.
The same cannot be said for the Division Manual at issue here. As discussed above, while directly regulating activities of Respondent's employees, the procedures for taking and testing of urine samples of racing greyhounds to ensure the integrity of the sport nevertheless substantially affect dog trainers and are important to the public. They have application to an industry outside the agency.
Section 3 of the Division Manual constitutes a rule within the meaning of section 120.52(16). It is undisputed that
it has not been adopted under the rulemaking procedures set forth in section 120.54.
Feasible and Practicable
Rulemaking is not a matter of agency discretion.
Section 120.54(1)(a) requires that statements meeting the definition of a rule be formally adopted as soon as feasible and practicable. The burden is upon Respondent to show
that rulemaking is not feasible or practicable under section 120.54(1)(a). Respondent has not contended that
rulemaking is not feasible or practicable and has not met that burden. Section 3 of the Division Manual is in violation of section 120.54(1)(a).
Petitioner also alleges that Section 3 is an invalid exercise of delegated legislative authority in violation of sections 120.52(8)(a), (d), and (e). These allegations are beyond the scope of a section 120.56(4) proceeding and are premature. If, and when, Respondent takes action to formally adopt Section 3 as a rule, it may be challenged on these grounds.
Absolute Insurer Rule Challenge
Rule 61D-6.002, entitled "General Duties and Responsibilities," 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.
The trainer of record shall be identified on Form DBPR PMW-3360, Kennel Personnel Roster, adopted and incorporated by Rule 61D-10.001, Florida Administrative Code, which the trainer shall provide to the chief inspector and racing secretary at any track where the trainer enters racing animals in pari-mutuel races.
Each permitholder of a thoroughbred, harness, or greyhound racing facility shall provide and maintain a detention enclosure in a location approved by the division for the purpose of securing urine, blood or other samples from racing greyhounds or horses. The detention enclosure at horse tracks shall contain a wash rack, an office for the division veterinarian, and not less than six detention stalls with an adjacent walking ring. The detention enclosure at greyhound tracks shall be located within a reasonable distance of the veterinary assistant detention office and shall have a chain link perimeter fence which will prevent access of unauthorized persons. The detention enclosure shall be large enough to allow three dogs to be walked simultaneously for the purpose of taking urine samples, be partially covered to allow sampling during inclement weather, and have sufficient lighting to allow sampling during hours of darkness.
This " absolute insurer" rule makes a trainer strictly liable for any drugs found in a racing animal. The rule has been challenged on several occasions and has been upheld. See Div. of Pari-Mutuel Wagering, Dep't of Bus. Reg. v. Caple, 362 So. 2d 1350 (Fla. 1978); Hennessey v. Dep't of
Bus. & Prof'l Reg., 818 So. 2d 697, 700 (Fla. 1st DCA 2002);
Solimena v. Dep't of Bus. Reg., Div. of Pari-Mutuel Wagering,
402 So. 2d 1240 (Fla. 3d DCA 1981).
Petitioner, faced with this formidable authority, launches a flanking attack on the absolute insurer rule, based upon the language of section 550.0251(3), which provides:
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. (Emphasis added.)
Petitioner notes that each of the court cases involved application of the rule to horse racing, asserts that the rule is applied differently in the two sports, and contends that the rule is therefore invalid as applied to greyhound racing. Specifically, Petitioner points to language in Hennessey explaining the rationale for holding horse trainers strictly liable, and notes that the opinion discussed the fact that either the trainer or one of his employees is with the horse at all times and that at no time prior to a race is a trainer prohibited from seeing the horse. Id., at 699-700. In contrast, Petitioner notes, dog trainers are not permitted in the kennel room and have no access to their dogs for a period of time prior to a race,
and specifically not during the time that pre-race specimen samples are collected. Petitioner quotes from Department of Business and Professional Regulation, Division of Pari-Mutuel
Wagering v. Alves, Case Nos. 11-1578PL, 11-1579PL (Fla. DOAH Sept. 19, 2011; Fla. DBPR Oct. 12, 2011), "Holding the trainer of record accountable is troubling where, contrary to the record established in Hennessey, the trainer or his
employee is not with the greyhound at all times prior to the race, and is in fact prohibited from being present."
Based upon these differences between horse racing and dog racing, Petitioner urges that rule 61D-6.002 is an invalid exercise of delegated authority because it is not uniform in its force and effect, as required by section 550.0251(3), in violation of sections 120.52(8)(c), (d), and
(e).
The phrase requiring racing rules to be "uniform in
their application and effect" evidently first appeared in a 1935 amendment to the statute, only four years after wagering on the results of horse and dog races was first legalized in Florida. See Jones v. Kind, 61 So. 2d 188, 189 (Fla. 1952);
State ex rel. Mason v. Rose, 122 Fla. 413, 419, 165 So. 347,
349 (1936). In St. Petersburg Kennel Club v. Baldwin, 38 So.
2d 436, 437-38 (Fla. 1949), a State Racing Commission rule prohibiting matinee performances at dog tracks that would
compete with afternoon horse races was challenged. The court construed the phrase "such rules and regulations shall be uniform in their application and effect" to require that rules be of statewide application and effect. The court found the rule at issue met that requirement because there was no attempt at classification on any basis in the law.
The court went on, however, to invalidate application of the rule to the St. Petersburg track, because notwithstanding the rule, the statute expressly provided that if there was only a single licensed dog track in a county, it could operate for
90 days during the racing season.
A few years later, the court noted that "uniform application and effect" meant that racing policies must be adopted as rules, rather than simply applied on an ad hoc basis, and must be applied impartially. Jones v. Kind, 61 So. 2d 188, 191 (Fla. 1952)(State Racing Commission had no authority to require stockholder to dispose of his stock, at least without first adopting uniformly applicable rules that could be applied impartially).
Petitioner's argument would expand these requirements that rules be applied statewide without favoritism or discrimination, to also require that they have identical effect on both horse racing and dog racing.
Even if the meaning of "uniform application and effect" could be so expanded, it is clear that horse racing and dog racing will never be precisely identical. The question is whether the differences are material enough to destroy uniformity in application for purposes of the rule. Respondent's contention--that the differences in the rule's application in the two sports are not significant--is compelling. Respondent asserts that in all aspects most pertinent to the court's opinion in Hennessey, horse racing and dog racing are in fact very similar. The court in Hennessey noted that each person who handled a horse prior to the running of a race was either an employee of the track or Department or was employed by or in a professional relationship with the trainer. That is also true in dog racing. While there is a period of time when a trainer has no access to his dogs, no other person, other than employees of the track or Respondent, has access during that time either. In fact, Respondent argues, allowing trainers to access the dogs would mean less security, not more, for the racing animals. As emphasized in the cases, strict liability is accepted as a condition of licensure. Hennessey v. Dep't
of Bus. & Prof'l Reg., 818 So. 2d 697, 701 (Fla. 1st DCA 2002)(Legislature granted the department specific authority to hold a trainer responsible for the condition of animals he
trains and races if they have drugs in their system); see
also Hudson v. Tex. Racing Comm'n, 455 F.3d 597, 601 (5th Cir. 2006)(absolute insurer rule does not assign fault, but instead assigns responsibility as a contingency to being licensed by the state). There is no practical alternative, and the trainer is the best person to hold accountable.
The other allegations that rule 61D-6.002 is invalid are easily addressed. Petitioner's initial charge that the rule is vague or vest unbridled discretion in the agency was not pursued. The rule is anything but vague. It is in fact quite clear and even harsh in its effect. Assigning responsibility to the person best suited to bear it, as approved by the courts, is not arbitrary or capricious.
Further, Respondent notes that its procedures do not in any way prevent any greyhound trainer from witnessing the pre-race collection of urine specimens, because samples are taken in an area open to view, though restricted to entry. The fact that Petitioner does not have enough staff to do so does not invalidate the Division procedures or the absolute insurer rule. Respondent's arguments are persuasive.
Petitioner's further arguments--including the citation to the Alves case, supra, the contention that rule 61D-6.005 provides due process "balance" to the absolute insurer rule, the absence of cameras in the Palm Beach Kennel Club, and citation
to the Arkansas Supreme Court--ultimately are offered to show that due process forbids pre-race testing of greyhounds if the trainer cannot always be present. Whatever the merit of this claim, it is not cognizable in an existing rule challenge proceeding in this forum. Gulf Pines Mem. Park v. Oaklawn Mem.
Park, 361 So. 2d 695, 699 (Fla. 1978)(a court may enjoin enforcement of facially unconstitutional agency rule because no administrative remedy exists); Dep't of Admin., Div. of Pers. v.
State, Dep't of Admin., Div. of Admin. Hearings, 326 So. 2d 187,
189 (Fla. 1st DCA 1976)(existing rule may not be declared unconstitutional in administrative proceeding).
Attorneys' Fees
Petitioner seeks attorneys' fees and costs pursuant to section 120.595(4)(a). This section provides that if an Administrative Law Judge determines that all or part of any agency statement violates section 120.54(1)(a), an order shall be entered against the agency for reasonable costs and reasonable attorney's fees, unless the agency demonstrates that the statement is required by the Federal Government to implement or retain a delegated or approved program or to meet a condition to receipt of federal funds.
DONE AND ORDERED this 29th day of January, 2015, in Tallahassee, Leon County, Florida.
F. SCOTT BOYD Administrative Law Judge
Filed with the Clerk of the Division of Administrative Hearings this 29th day of January, 2015.
1/ All references to statutes and rules are to the versions currently in effect, except as otherwise indicated.
2/ While the court did not find that Lanoue had standing to challenge the unadopted rules, this was not due to any distinction between standing to challenge rules and unadopted rules, but rather because the court found the subject of the unadopted rules—-dealing with approval of the source of the alcohol referencing solution used in the test machines--was "too remote" and lacked the "direct impact" of the adopted rules.
Lanoue, 751 So. 2d at 99.
3/ There may in fact also be rare cases in which an unadopted rule challenge should be heard even though the only written evidence of the policy statement is the charge in an administrative complaint, where the petition alleges that the agency has a generally applicable policy statement in existence distinct from the charge and that the complaint only reflects that established policy. While such a case might be very difficult to prove, a generally applicable agency policy statement need not be in writing. Dep't of High. Saf. & Motor Veh. v. Schluter, 705 So. 2d 81 (Fla. 1st DCA 1997).
4/ Unadopted rule challenges serve to enforce the rulemaking requirements of chapter 120, an important public interest distinct from that of a single respondent charged in an administrative complaint. As stated in McDonald v. Department of Banking and Finance, 346 So. 2d 569, 580 (Fla. 1st DCA 1977):
The APA does not in terms require agencies to make rules of their policy statements of general applicability, nor does it explicitly invalidate action taken to effectuate policy statements of that character which have not been legitimated by the rulemaking process. But that is the necessary effect of the APA if the prescribed rulemaking procedures are not to be atrophied by nonuse.
The requirement to adopt rules was subsequently codified.
§ 120.535, Fla. Stat. (1991). The attorneys' fees provisions of section 120.595(4) encourage affected parties to undertake this "private attorney general" function, and so encourage agencies to engage in rulemaking when appropriate.
Jennifer York Rosenblum, Esquire 13386 La Mirada Circle Wellington, Florida 33414 (eServed)
Marisa G. Button, Esquire Department of Business and
Jason L. Maine, Esquire Department of Business and
Jeremy E. Slusher, Esquire Kubicki Draper
J. Layne Smith, General Counsel Department of Business and
Leon M. Biegalski, Director Division of Pari-Mutuel Wagering Department of Business and
R.A. Gray Building, Suite 101 Tallahassee, Florida 32399 (eServed)
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 the original notice of administrative appeal with the agency clerk of the Division of Administrative Hearings within
30 days of rendition of the order to be reviewed, and a copy of the notice, accompanied by any filing fees prescribed by law, with the clerk of the District Court of Appeal in the appellate district where the agency maintains its headquarters or where a party resides or as otherwise provided by law.
