vs. ) CASE NO. 80-1128RX
Respondent. )
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William E. Williams, held a public hearing in this case on July 24, 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 June 20, 1980, Petitioner, Charles Federman ("Petitioner") challenges the validity of Rules 7E-4.05(3), 7E-4.09, 7E-4.25(11)(11), 7E-4.25(12)(a) and 7E-4.05(13),
Florida Administrative Code, pursuant to the provisions of Section 120.56, Florida Statutes. Final hearing in the cause was scheduled for July 24 and 25, 1980, by Notice of Hearing dated June 26, 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 pendent of associated proceedings involving these same parties, specifically Division of Administrative Hearings Case Nos. 80-817, 80-1147 and 80-1449R, 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 Regulations, and is charged by law with regulatory authority over Florida's pari-mutuel wagering industry.
On December 12, 1979, Respondent issued a Notice to Show Cause, seeking to revoke Petitioner's occupational license, alleging that Petitioner had violated Rules 7E-4.25(12)(a), 7E-4.05 and 7E-4.25(13), Florida Administrative Code. Simultaneously with the issuance of the Notice to Show Cause, Respondent issued an Emergency Order indefinitely suspending Petitioner's occupational license.
The Notice to Show Cause alleged that Petitioner was the trainer of the horse Hanker Chief who ran in and won the ninth race at Tourist Attractions (Pompano Park) on November 28, 1979, and that a urine sample taken from the horse and analyzed by Respondent was shown to contain butorphanol, which was alleged to be a narcotic agonist-antagonist, analgesic. An Amended Notice to Show Cause alleged that butorphanol was a "narcotic agonist - antagonist, analgesic" and was also a "narcotic and a depressant." Subsequently, a Second Amended Notice to Show Cause alleged that butorphanol was a "narcotic agonist - antagonist analgesic" and also a "depressant or stimulant."
The subject matter alleged in the Notice to Show Cause, as amended, is presently pending before the Division of Administrative Hearings in Division of Administrative Hearings Case No. 80-817.
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-4.05, 7E-4.09, 7E-4.25(12)(a), 7E-4.25(11)(11), and 7E-4.25(13), Florida Administrative Code.
Section 550.02(3), Florida Statutes, is listed in the Florida Administrative Code as "specific authority" for the adoption of Rules 7E-4.05 and 7E-4.25. This statutory provision 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 applications, permittees and licensees, and for the holding, conducting and operation 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-4.05(3), Florida Administrative Code, provides that:
The trainer shall be responsible for and be the insuror of the condition of the horses he enters. Trainers are presumed to know the rules of the division.
Rule 7E-4.03 was last amended, insofar as is here pertinent, on November 0, 1975.
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 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 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(13), Florida Administrative Code, also purportedly promulgated pursuant to the authority contained in Section 550.02(3). Florida Statutes, provides that:
The trainer, groom, and any other person having charge, custody, or care of the horse, are obligated properly to protect the horse and guard it
against such administration or attempted administration and if the stewards shall find any such person has failed to show proper protection and guarding of the horse, they shall impose such punishment and take other action as they deem proper
under any of the rules, including reference to the Division.
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. (Emphasis added).
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, suspensions or revocation of license. (Emphasis added).
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. (Emphasis added).
Where, as her, 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 legis-
lation and are not arbitrary or capricious
. . . Florida Beverage 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 . . . licenses . . . 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-4.05, Florida Administrative Code, was last amended November 10, 1975. Rule 7E-4.25 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 [the rules' validity] [has gained] 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.
In Count I of the petition Petitioner contends that Rules 7E-4.05(3), 7E-4.25(12)(a), and 7E-4.25(13), Florida Administrative Code, are invalid because they ". . . are based on [an] invalid delegation of legislative authority. . . ." This issue is not within the ambit of a Section 120.56(1), Florida Statutes proceeding, which is limited to whether a rule is an invalid exercise of delegated legislative authority. Petitioner's arguments for the rule's invalidity on this ground are, therefore, rejected.
In Count II of the petition, Petitioner contends that Rules 7E- 4.25(12)(a), and 7E-4.25(13), Florida Administrative Code" . . . require evidence of personal involvement by the accused in the [alleged] improper conduct. . . ." and that the rules, therefore, do not apply to the Petitioner, the allegations of the Notice to Show Cause to the contrary notwithstanding. The question for disposition in this proceeding is whether these rules constitute a valid or invalid exercise of delegated legislative authority. The proper construction or application of the rules to the circumstances alleged in the Notice to Show Cause are a proper subject for inquiry in a Section
120.57(1), Florida Statutes proceeding, and are not properly raised in this rules challenge proceeding.
In Count III of the petition, Petitioner alleges that Rule 7E-4.05(3), Florida Administrative Code, the so-called "absolute insurer rule", is invalid".
. . because the statute on which the Respondent relies for authority [to promulgate the rule] is vague and contains no standards." To the extent that Petitioner, by this count, contests the validity of the statute which Respondent advances as authority for adoption of the rule, authority to decide this issue lies with the judicial branch, and not with the Division of Administrative Hearings. See, Department of Revenue v. Young American Builders, 358 So.2d 1096 (Fla. 1st DCA 1978). To the extent that this count addresses the issue of whether the general rulemaking authority contained in Section 500.02(3), Florida Statutes, is insufficient authority for the promulgation of Rule 7E-4.05(3), Florida Administrative Code, this contention is specifically rejected on the authority of the Wynne and Jax Liquors cases discussed earlier in this order.
In Count IV of the petition, Petitioner argues for the invalidity of Rule 7E-4.05(3), Florida Administrative Code, on the grounds that the rule exceeds the authority granted they agency by Section 550.02(3), Florida Statutes. As indicated hereinbefore, this position is without merit, and is specifically rejected, also on the authority of the Wynne and Jax Liquors decisions previously cited.
In Count V of the petition, Petitioner does not attack the validity of any of Respondent's rules, but instead attacks Respondent's jurisdiction to issue the Notice to Show Cause. The issues raised by Count V are, therefore, outside the issues properly cognizable in a Section 120.56(1), Florida Statutes proceeding and must be raised by Petitioner in a Section 120.57(1), Florida Statutes proceeding concerning the factual allegations contained in the Notice to Show Cause.
In Count VI of the petition, Petitioner contends that Rules 7E- 4.05(3), 7E-4.25(12)(a), and 7E-4.25(13), Florida Administrative Code ". . . are unconstitutionally vague and ambiguous by failure to establish a reasonable standard of permissible conduct." In essence, Petitioner claims that the rules are invalid because they fail to define what substances constitute a "narcotic, stimulant or depressant" so that substances were permitted and which were not. As indicated by the court in Department of Environmental Regulation v. Leon County, 344 So.2d 297, 298 (Fla. 1st DCA 1977):
The hearing officer, in the exercise of quasi-judicial authority in furtherance of the administrative rulemaking process, can determine whether or not a proposed rule violated the Florida Constitution
if adopted, such determination being subject to judicial review . . . Once a
. . . rule has been enacted or adopted, however, the determination of the constitutionality thereof requires exercise of judicial power which is vested
only in the courts. (Emphasis in original).
Accordingly, the question of whether the challenged rules are unconstitutionally vague and ambiguous is a judicial determination, and is outside the jurisdiction of the Division of Administrative Hearings. However,
it should be parenthetically noted that in the recent case of Calfin v. Division of Pari-Mutuel Wagering, Case No. 80-255 (Fla. 4th DCA December 24, 1980) the court determined that the use of term "narcotic" in Rule 7E-4.25(12)(a), Florida Administrative Code ". . . sufficiently designates prohibited substances to a trainer who has, or should have, expertise not common to the ordinary person."
In Count VII of the petition, Petitioner reiterates his constitutional challenge to the use of the terms "narcotic, stimulant and depressant" contained in Rule 7E-4.25, Florida Administrative Code, which issues, as indicated above, are not cognizable in a Section 120.56(1), Florida Statutes proceeding. In addition, Petitioner argues in Count VII that adoption of Rule 7E-4.25 Florida Administrative Code was not authorized under the provisions of Section 550.02(3), Florida Statutes. As indicated earlier in this order, this contention is without merit.
Finally, in Count VIII of the petition, Petitioner challenges the penalty provision of Rule 7E-4.09 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. (Emphasis added).
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 rules . . ." Nowhere in Chapter 550, Florida Statutes, does the Legislature authorize the imposition by the Division of Pari-Mutuel Wagering of a monetary penalty for violation of its rules. Accordingly, those portions 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 also equally clear 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-4.05(3), 7E-4.25(12)(a) and 7E- 4.25(13), Florida Administrative Code, constitute 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 legislative 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 GRANTED.
DONE AND ENTERED 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
David M. Maloney, Esquire Staff Attorney
Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
Mr. Carroll Webb Executive Director
Ms. Liz Cloud Department of State
Bureau Chief, Administrative Code Room 1802, Capitol Building Tallahassee, Florida 32301
