Findings Of Fact The Respondent, Florida Parole and Probation Commission, adopted revised rules of practice and procedure which became effective on September 10, 1981. Among these is Rule 23-21.09, Florida Administrative Code, which establishes "matrix time ranges" that are used in determining presumptive parole release dates for persons who are serving prison terms. In determining presumptive parole release dates, the Respondent's rules require that a "salient factor score" be determined based upon such factors as the number of prior criminal convictions, the number of prior incarcerations, total time served in prisons, the inmate's age at the time of the offense which led to the first incarceration, the number of probation or parole revocations, the number of prior escape convictions, and whether burglary or breaking and entering is the present offense of conviction. The degree or severity of the present offense of conviction is then determined. The Respondent's Rule 23-21.09 sets guidelines for time ranges for presumptive parole release dates depending upon the severity of the present offense of conviction and the salient factor score. The more severe the present offense of conviction, the longer will be the period before the presumptive parole release date. Similarly, given the severity of the offense, the higher the salient factor score the longer will be the period before the presumptive parole release date. The rule replaced a rule which set different matrix time ranges. The new rule generally sets longer time ranges, but this is not uniformly true. The Petitioner, Seimore Keith, is an inmate presently incarcerated at Polk Correctional Institution, Polk City, Florida. Polk Correctional Institution is a facility maintained by the Florida Department of Corrections. Petitioner Keith was convicted of grand theft in July, 1980, and was sentenced to serve five years in prison. The conviction was the result of a guilty plea which was entered in accordance with a plea bargain. During plea negotiations, Petitioner Keith was advised that his presumptive parole release date under Florida Parole and Probation Commission rules would require that he serve no more than 25 months in prison. At the time that Petitioner Keith's presumptive parole release date was set by the Respondent, the new Rule 23-21.09 had come into effect, and the Petitioner's presumptive parole release date was set to require that he serve 32 months in prison. The Petitioner, Ronnie McKane, is presently incarcerated at Polk Correctional Institution. He was convicted of the offense of armed robbery in February, 1981. Under rules in effect when he was sentenced, which was prior to the adoption of Rule 23-21.09, Petitioner McKane's presumptive parole release date would, if the guidelines were followed, have been set sooner than under Rule 23-21.09. The new rule was applied by Respondent in setting McKane's presumptive parole release date. The Petitioner, Daniel P. Hull, is presently incarcerated at Polk Correctional Institution. He was convicted in September, 1971, of the offense of robbery and sentenced to serve ten years in prison. He was paroled in 1974, but was reincarcerated as a result of a parole violation in 1976. In 1977 he escaped, and was recaptured in January, 1981. On June 1, 1961, Petitioner Hull was convicted of the offense of escape and sentenced to serve nine months. Under the rules in effect when he was sentenced, which was prior to the adoption of Rule 23-21.09, Hull's presumptive parole release date would, if the guidelines were followed, have been set sooner than under Rule 23-21.09. The new rules were applied by Respondent in setting Hull's presumptive parole release date, and it has been set subsequent to the expiration of his sentence. Hull will therefore be released when his sentence expires in March, 1982. The Petitioner, Douglas L. Adams, was convicted of the offenses of possession of marijuana and uttering a forged instrument, and sentenced in February, 1981, to two consecutive five-year sentences. Under the rules in effect when Adams was sentenced, which was prior to the adoption of Rule 23- 21.09, Adams' presumptive parole release date would, if the guidelines were followed, have been set sooner than under Rule 23-21.09. The new rule was applied by the Respondent in setting Adams' presumptive parole release date. During 1980, the Respondent directed its staff to begin considering proposed changes to its rules of practice and procedure. Various proposals were considered, and by September, 1980, a proposed rule package had been developed. The Respondent directed its staff to submit the proposed rule package to the Governor and members of the Cabinet, various pertinent legislators, county and circuit judges, prosecutors and public defenders, superintendents of each prison in the State, and to members of the Supreme Court and the district courts. The Commission opted to conduct various workshops throughout the State, and to invite all interested persons to share their input. Notices of the workshops were published in the Florida Administrative Weekly. The workshops were conducted, and the Commission commenced formal rule-making proceedings. Notice of rulemaking was published in the Florida Administrative Weekly, and hearings were scheduled. Notice of the formal rulemaking proceedings was also published in the St. Petersburg Times, the Pensacola Journal, the Tallahassee Democrat, the Orlando Sentinel-Star, and the Florida Times-Union. Persons who had requested specific notification were provided it. In response to this notice, the Respondent received considerable written input, and oral presentations were made at hearings that were conducted. The final hearing in the rule-making proceeding was conducted on June 19, 1981, and the rules, including Rule 23- 21.09, were thereafter adopted effective September 10, 1981. Notice of the proposed rule changes and of the formal rulemaking proceeding was not specifically disseminated to inmates at Florida's prisons. The proposed rules were for- warded to the superintendent of each facility. At some of the institutions the proposed rules were apparently posted. All persons who requested copies of the proposed rules from the Florida Parole and Probation Commission were provided them. Numerous prisoners and organizations that represent prisoners made input during the various states of the rulemaking proceeding. None of the Petitioners in this matter were specifically noticed of the rulemaking proceeding. One of the Petitioners had heard that rules were being proposed, and requested copies of them from members of the Legislature or from Department of Corrections personnel. None of the Petitioners requested copies of the proposed rules from the Respondent or anyone connected with the Respondent.
Findings Of Fact Petitioner is a Florida corporation with its business located in Tampa, Florida. Respondent is a stated agency charged with responsibility for investigating and resolving unlawful employment practices. Its duties and powers are enumerated in Chapter 23, Florida Statutes, the Human Rights Act of 1977. 2. Respondent has adopted Rules 9D-8.06, 8.22(2), 9.03(4), and 9.03(7), Florida Administrative Code. These rules authorize Respondent to issue subpoenas, serve them by registered mail, and enforce them through judicial proceedings. The rules specifically authorize issuance, service, and enforcement of subpoenas in connection with investigations of unfair employment practices. They provide that inferences may be drawn from the failure of a person to provide requested information. . . Linda Parties filed a complaint against Petitioner with the Respondent, alleging sex discrimination by Petitioner. Based upon the complaint, Respondent initiated an investigation. It formally requested information from Petitioner on July 13, 1979. On April 7, 1981, Respondent issued a subpoena in connection with the investigation and served it by registered mail in accordance with its rules. Petitioner objected to the subpoena and has not provided the requested information. Respondent has sought to enforce the subpoena through a "Petition for Enforcement" filed in Circuit Court in Leon County, Florida. Circuit Judge Donald O. Hartwell has entered an Order which provides: This cause came to be heard on the Motion To Dismiss Petition For Enforcement of Investigatory Subpoena filed by the Human Development Center, Respondent. Both parties were represented by Counsel who presented argument to the court. The court being otherwise fully advised enters this its order; therefor it is, Ordered that the service of an investigatory subpoena served by certified mail pursuant to Rule 9D-8.22, Florida Administrative Code is valid service. Such service is not required to be served in accordance with Florida Statutes 48.031 or Rule 1.410(c), Florida Rules of Civil Procedure. It is further, Ordered that the Motion To Dismiss Petition For Enforcement of Investigatory Subpoena is denied. It is further, Ordered that further proceedings to enforce the investigatory subpoena in this cause are stayed pending the ruling of Hearing Officer G. Steven Pfeiffer in Case No. 81-2101RX now set for hearing on October 21, 1981. Respondent has made no determination of reasonable cause to believe that Petitioner has engaged in any unlawful employment practice.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, I make the following findings of fact: At all times material to the allegations of the. administrative complaint, Respondent, Michael James Hanly, was a licensed registered nurse, license no. RN 78035-2. On or about November 18, 1987, the Board of Nursing entered a final order regarding disciplinary action against this Respondent. The final order found the Respondent guilty of improper conduct and specified the following penalties: The licensee shall pay an administrative fine of $500.00 within 6 months. The licensee is hereby placed on PROBATION for a period of two years, subject to the following terms and conditions: The licensee shall not violate any Federal or State law, nor any rule or order of the Board of Nursing. The licensee shall submit written reports to the Board, which contain the licensee's name, license number, current address, current employer's name, address and telephone number, and a statement by the licensee describing his nursing employment and performance These reports shall be submitted quarterly, as scheduled by the Board probation section. The licensee shall enroll in and successfully complete, in addition to normally required continuing education courses, courses in the following subject areas: medical ethical considerations and legal aspects of nursing within six (6) months from the filing of this Order. * * * While employed as a nurse, the licensee shall be responsible for causing reports to be furnished by his employer to the Board; these reports shall set out the licensee's current position, work assignment, level of performance, and any problems. The reports shall be submitted every three months as scheduled by-the Board probation section. If employed otherwise than as a nurse, the licensee shall report the position, employer and place of employment to the Board section on the scheduled quarterly dates. If not employed, the licensee shall so notify the Board probation section on the scheduled quarterly dates. Any deviation from the requirements of this probation without the prior written consent of the Board shall constitute a violation of this probation. Subsequent to the entry of the final order, the Respondent did not submit reports, did not complete the continuing education, and did not pay the administrative fine. On June 10, 1988, the Department wrote to the Respondent to notify him that the terms of the final order had not been met. This letter was received by the Respondent on June 14, 1988. On June 29, 1988, the Department again wrote to the Respondent to advise him that he was delinquent and in violation of the final order. This letter was received by the Respondent on July 12, 1988. Upon receipt of the correspondence described in paragraph 3, Respondent replied to the Department by stating that the matters addressed in the final order were on appeal to the district court of appeal. The Respondent did not pay the administrative fine nor seek additional time within which to comply with the remaining terms of the final order. Finally, the Department wrote to Respondent on July 22, 1988, acknowledged that the final order had been appealed, but informed Respondent that he was required to comply with the final order unless a stay were entered by the appellate court. Respondent did not obtain a stay from the appellate court and, as of the date of the hearing, had not complied with the terms of the final order entered November 18, 1987.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Board of Nursing enter a final order which finds Respondent guilty of the violation alleged in the administrative complaint, imposes an administrative fine in the amount of $250, and lengthens the period of Respondent's probation to four years. DONE and ENTERED this 5th day of July, 1989, in Tallahassee, Leon County, Florida. Hearings Hearings JOYOUS D. PARRISH Hearing Officer Division of Administrative The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative this 5th day of July, 1989. APPENDIX TO THE RECOMMENDED ORDER RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE DEPARTMENT: Paragraphs 1 and 2 are accepted. With regard to paragraph 3, it is accepted that the Respondent filed an appeal which was assigned case no. 88- 1069; whether that appeal was timely or complied with the provisions of Section 120.68, Florida Statutes, is unknown and not a part of this record. It is accepted that the parties, for purposes of the hearing, believed the appeal to be proper. Paragraphs 4 through 11 are accepted. The Respondent did not submit proposed findings of fact. An ex parte communication was submitted on June 19, 1989, which is rejected as argument, irrelevant or contrary to the weight of the credible evidence. COPIES FURNISHED: Michael A. Mone' Senior Attorney Department of Professional Regulation 1940 North Monroe, Suite 60 Tallahassee, Florida 32399-0729 M. James Hanly, R.N. Post Office Box 1472 Boynton Beach, Florida 33425 Kenneth Easley General Counsel Department of Professional Regulation 1940 North Monroe, Suite 60 Tallahassee, Florida 32399-0729
Findings Of Fact By Administrative Complaint filed May 28, 1986, Petitioner, Department of Insurance and Treasurer (Department) charged that Respondent, Theodore Riley (Riley), while employed as an adjuster by United States Fidelity and Guaranty Group, (USF&G), did wrongfully obtain the sum of $400 from a workmens compensation claimant to assure that USF&G would not contest the claim (Count I). The complaint further alleged that on September 16, 1985, Riley entered a plea of nolo contendere to an information charging a violation of Section 812.014, Florida Statutes, a felony of the second degree and a crime involving moral turpitude, and that the court withheld adjudication and placed Riley on 18 months probation (Count II). The Department concluded that such conduct demonstrated, inter alia, a lack of fitness or trustworthiness to engage in the business of insurance; fraudulent or dishonest practices in the conduct of business under the license or permit; and, a plea of nolo contendere to a felony involving moral turpitude. Section 626.611(7),(9) and (14), Florida Statutes. At hearing, Riley entered a plea of no contest to Count II of the Administrative Complaint in exchange for the Department's dismissal of Count I of the Administrative Complaint and the Department's agreement that the penalty imposed would be limited to a suspension of his eligibility for licensure for a period of two (2) years. While not conditioning his agreement to a two year suspension, Riley did request that the Department consider crediting the time he has been on probation against the two year suspension. The evidence shows that Riley was arrested and charged with the subject offense in March 1985, that he entered a plea of nolo contendere, that adjudication of guilt was withheld, and that he was placed on probation for 18 months commencing September 16, 1985. As a special condition of probation, Riley was ordered not to apply for an adjuster's license during the term of his probationary period. Consistent with the terms of his probation, Riley has not renewed his adjusters' license. The Department's records reflect that Riley's license was last due for renewal, but not renewed, on April 1, 1985.
Findings Of Fact Florida law requires that persons employed to serve in instructional capacities in the public schools hold valid certificates to teach. The Respondent, Florida Department of Education, is charged by statute with the responsibility of issuing such teaching certificates, and with the concomitant responsibility to suspend or revoke teaching certificates under appropriate circumstances. Sections 231.14 - 231.28, Florida Statutes. Purporting to act under authority of this statutory framework, the Respondent has adopted Rules 6A-4.37, and 6B-2.01 through 6B-2.17, Florida Administrative Code, as its rules establishing practices to be followed in suspending or revoking teaching certificates. The Respondent's rules establish a procedure whereby a teacher charged with conduct that would justify suspension or revocation of a teaching certificate is presented with the options of taking no action, which results in informal procedures at which the appropriate penalty is the only issue; or of requesting a hearing. If a hearing is requested, the teacher is permitted to choose between a hearing conducted by a Hearing Officer of the Division of Administrative Hearings as provided in Section 120.57(1), Florida Statutes, or a hearing conducted by a panel of the Professional Practices Council ("PPC" hereafter). Rule 6A-4.37(2) provides in pertinent part as follows: When the commissioner of education finds that probable cause exists, he shall direct a filing of a formal petition against the certificate holder for the revocation or suspension of a teacher's certificate, together with a form permitting waiver of a hearing officer pursuant to section 120.57(1), Florida Statutes, as hereinafter provided. If section 120.57(1), Florida Statutes, shall be waived by both the respondent and the chairman of the professional practices council by executing and filing the waiver form with the commissioner of education within twenty (20) days from service of the petition upon the respondent, the commissioner of education shall direct the chairman of the professional practices council to prosecute the matter before a hearing panel of three members of the professional practices council each of whom has not participated in nor was an informed party in any preliminary investigation of the cause. If section 120.57(1) Florida Statutes, is not waived by the parties, the matter shall be prosecuted before a hearing officer of the division of administrative hearings. The professional practices council may retain an attorney to prosecute the cause. The professional practices council may retain a different attorney to advise the hearing committee and act as a law officer for said committee. On completion of the hearing as hereinafter set forth, the hearing panel or officer, shall transmit through the commissioner of education to the state board of education a transcript of the proceedings and a report, which shall contain specific findings of fact, conclusions of law, interpretations of rules and a recommended order. The state board of education shall review the transcript of testimony and the report. The waiver form utilized is as follows: WAIVER OF RIGHT TO A HEARING BEFORE A HEARING OFFICER OF THE DIVISION OF ADMINISTRATIVE HEARINGS IN PREFERENCE TO A HEARING BEFORE A PANEL OF THE PROFESSIONAL PRACTICES COUNCIL In the matter of the revocation of the teaching certificate of and pursuant to the provisions of 120.57, Florida Statutes, I hereby waive my right to a hearing before a hearing officer of the Division of Administrative Hearings. In the alternative I do hereby request that this matter be heard before a panel of professional educators from the membership of the Professional Practices Council as provided in 6A-4.37, Rules of the State Board of Education. DATE RESPONDENT The remaining paragraphs of 6A-4.37 delineate specific procedures to be followed whether the hearing is conducted by a Hearing Officer, or by a PPC panel. The rule was adopted at a May, 1977 meeting of the State Board of Education. Prior to its adoption, public hearings were conducted, and members of the public, including the Petitioner, were allowed an opportunity to comment. The Joint Administrative Procedures Committee of the Florida Legislature reviewed the rule. The rules set out at Chapter 6B-2.01 through 6B-2.16, Florida Administrative Code, establish additional procedures for public hearings conducted by the PPC. These rules pertain to teaching certificate suspension or revocation proceedings and to other matters. They are in large part inconsistent with the provisions of Rule 6A-4.37, and with the Administrative Procedure Act (Ch. 120, Florida Statutes). The rules are no longer followed by the PPC except those provisions which relate to the appointment of a law officer to aid a PPC panel in conducting hearings. The Respondent has been in the process of revising these rules for more than one year. Rule 6B-2.17 relates to probable cause hearings to be conducted by an executive committee. The rule is somewhat vague, but it appears to relate to proceedings under Section 231.57, Florida Statutes, rather than teaching certificate suspension or revocation proceedings. The rule does not relate to the issue of whether a final hearing will be conducted by a Hearing Officer of the Division of Administrative Hearings, or a panel of the PPC. During 1977, three-member PPC panels conducted thirteen hearings in teaching certificate suspension or revocation proceedings. Fourteen such hearings were conducted by Hearing Officers. During 1978, eighteen were conducted by PPC panels, and eleven by Hearing Officers. The Petitioner, Florida Education Association/United AFT-AFL-CIO, is a statewide organization composed of persons involved in the field of education. The members are primarily teachers. The Petitioner is a confederation of local affiliates. Its local affiliates serve as collective bargaining representatives for teachers in approximately half of the local school districts in Florida. Among the Petitioner's functions are to protect its members, and members of the teaching profession with respect to the terms and conditions of their employment as teachers. The Petitioner provides services which local affiliates are largely unable to perform, including legal assistance and lobbying assistance. In many instances the Petitioner provides legal counsel to its members in connection with teaching certificate suspension or revocation proceedings. At the Petitioner's October, 1978 convention, its members authorized Petitioner's executive council to examine the status of the PPC, and to take steps to clarify the role of the PPC. The instant rule challenge was authorized by the executive council in accordance with that mandate of the membership. There are approximately 90,000 teachers in Florida. The Petitioner represents approximately 30,000 of them.
Findings Of Fact Standing. The Petitioner, David Ansgar Nyberg, is an inmate in the custody of the Respondent, the Department of Corrections. The Petitioner is subject to the rules of the Respondent, including the rule at issue in this proceeding. The Petitioner has challenged Rule 33-12.001(2), Florida Administrative Code. The Respondent. Section 944.09, Florida Statutes, requires that the Respondent, an agency of the State of Florida, adopt rules governing the administration of the correctional system in Florida. Among other things, Section 944.09, Florida Statutes, requires that rules be adopted by the Respondent governing all aspects of the operation of the prison system in Florida. Rule 33-12.001(2), Florida Administrative Code. Rule 33-12.001, Florida Administrative Code, provides in pertinent part: Prior notice of adoption, amendment or repeal of a rule shall be made available to persons or parties directly affected by the rule as required in 120, F.S. Notice to those directly affected by a proposed rule shall be by: . . . . (b) Publication in the Florida Administrative Weekly at least 14 days prior to any proposed hearing. . . . . (d) Posting by memorandum notice of the intended action on the inmate and personnel bulletin boards of all major institutions, road prisons, community correctional centers, community vocational centers and offices throughout the state directing that complete proposed rules are available in each institutional library or office. A copy of the notice shall be circulated among the inmates in all disciplinary, administrative or close management confinement areas of all facilities.
Findings Of Fact On February 18, 1992, the Petitioner, Douglas Adams, filed a Petition to Determine the Invalidity of an Existing Rule. In the Petition, the Petitioner challenged Rule 33-22.012, 3-12, Florida Administrative Code, pursuant to Section 120.56, Florida Statutes. The Petitioner is an inmate in the custody of the Respondent, the Department of Corrections. The Petitioner is subject to the rules of the Respondent, including the Challenged Rule. Section 944.09, Florida Statutes, requires that the Respondent, an agency of the State of Florida, adopt rules governing the administration of the correctional system in Florida. Among other things, Section 944.09, Florida Statutes, requires that rules be adopted by the Respondent governing all aspects of the operation of the prison system in Florida. Chapter 33-22, Florida Administrative Code, contains rules governing "inmate discipline." Those rules provide the general policy of the Respondent concerning inmate discipline (Rule 33-22.001), terminology and definitions (Rule 33-22.002), the procedures for taking disciplinary action against inmates (Rules 33-22.003-33-22.010), and the "Rules of Prohibited Conduct and Penalties for Infractions (the Challenged Rule). Rule 33-22.012, Florida Administrative Code, provides, in pertinent part, the following: 33-22.012 Rules of Prohibited Conduct and Penalties for Infractions. The following table shows established maximum penalties for the indicated offenses. As used in the table, "DC" means the maximum number of days of disciplinary confinement that may be imposed and "GT" means the maximum number of days of gain time that may be taken. Any portion of either penalty may be applied. "All GT" includes both earned and unearned gain time. In addition to the penalties listed below, inmates may be required to pay for damaged, destroyed or misappropriated property under the provisions of rule 33-22.008(2)(b)13. . . . . Rule 33-22.012, Florida Administrative Code, includes a table listing of various offenses for which disciplinary action may be taken and the maximum penalty for such offenses. The Challenged Rule provides that "Possession of any other contraband" is an offense for which discipline may be imposed on inmates. The Challenged Rule also provides that the maximum penalty for this offense is 15 days of disciplinary confinement and loss of 30 days gain time. The Challenged Rule does not include a definition of "contraband." Rule 33-22.012, 3-1 to 3-11, Florida Administrative Code, designates the possession of certain specific items of contraband to be a ground for discipline and provides the maximum penalty therefore. The Petitioner has alleged, in part, that the Challenged Rule is invalid because it: . . . constitutes an invalid rule where the rule has exceeded its grant of authority as contain in 944.47, Florida Statutes (1991), in that the rule seeks to define contraband to be "any other contraband" not defined as such by enabling legislation contrary to Section 120.52(8)(b), Florida Statutes (1991). As matter of fact, the rule . . . goes beyond the statutory definition of contraband with the inclusive phrase "any other contraband" without more. . . . The Petitioner also alleged that the Challenged Rule is invalid pursuant to Section 120.52(8)(c), Florida Statutes, for essentially the same reason. The Petitioner further alleged that the Challenged Rule is vague and vest unbridled discretion in the Respondent because of the failure to define "any other contraband" in the Challenged Rule. Finally, the Petitioner alleged that the Challenged Rule is arbitrary and capricious because there is "no logical basis in fact to condemn legally lawful material as contraband with the phrase 'any other'. Rule 33-3.006, Florida Administrative Code, provides a definition of the term "contraband." There is, therefore, no reason to further define the term "contraband" used in the Challenged Rule. The reference to "any other" is merely an indication that the penalty provided for in the Challenged Rule is for the possession of any contraband (as defined elsewhere) other than contraband specifically listed in Rule 33-22.012, 3-1 through 3-11.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that all charges against respondent be DISMISSED. DONE and ENTERED this 16th day of January, 1984, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Department of Administration Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 904/488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of January, 1984. COPIES FURNISHED William W. Tharpe, Jr., Esquire Department of Insurance Larson Building Tallahassee, Florida 32301 Dock Blanchard, Esquire Post Office Box 24 Ocala, Florida 32678 The Honorable Bill Gunter Insurance Commissioner and Treasurer The Capitol Tallahassee, Florida 32301 =================================================================
The Issue The issue for determination in this proceeding is whether Florida Administrative Code Rule 61D-6.011 is an invalid exercise of delegated legislative authority, in violation of section 120.52(8).
Findings Of Fact Petitioner, FHBPA, is a Florida not-for-profit corporation created to advance, foster, and promote the sport of thoroughbred horse racing in the State of Florida. FHBPA’s membership includes over 200 Florida-licensed horse trainers and over 5,000 Florida-licensed horse owners, and has associational standing to file and prosecute actions on behalf of its members. Respondent has not challenged FHBPA’s standing to bring this proceeding. Respondent, Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering (PMW), is the state agency charged with the regulation of pari-mutuel wagering in the State of Florida, pursuant to section 20.165 and chapter 550, Florida Statutes. The question to be decided in this proceeding is what the Legislature meant when it amended section 550.2415(7) in 2015, and whether rule 61D-6.011 carries out the legislative directive it contains. Before the 2015 legislative session, section 550.2415 stated, in pertinent part: (3)(a) Upon the finding of a violation of this section, the division may revoke or suspend the license or permit of the violator or deny a license or permit to the violator; impose a fine against the violator in an amount not exceeding $5,000; require the full or partial return or the purse, sweepstakes, and trophy of the race at issue; or impose against the violator any combination of such penalties. The finding of a violation of this section in no way prohibits a prosecution for criminal acts committed. * * * (7)(e) The division may, by rule, establish acceptable levels of permitted medications and shall select the appropriate biological specimens by which the administration of permitted medication is monitored. * * * 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. Except as specifically modified by statute or by rules of the division, the Uniform Classification Guidelines for Foreign Substances, revised February 14, 1995, as promulgated by the Association of Racing Commissioners International, Inc., is hereby adopted by reference as the uniform classification system for class IV and V medications. (Emphasis added). During the 2015 legislative session, the Legislature substantially amended section 550.2415. Ch. 15-88, § 1, Laws of Fla. Not all of the changes made are germane to the challenge at issue here, but the amendments to subsections (3) and (7) are critical: (3)(a) Upon the finding of a violation of this section, the division may revoke or suspend the license or permit of the violator or deny a license or permit to the violator; impose a fine against the violator in an amount not exceeding the purse or sweepstakes earned by the animal in the race at issue or $10,000, whichever is greater; require the full or partial return of the purse, sweepstakes, and trophy of the race at issue; or impose against the violator any combination of such penalties. The finding of a violation of this section does not prohibit a prosecution for criminal acts committed. * * * (7)(a) In order to protect the safety and welfare of racing animals and the integrity of the races in which the animals participate, the division shall adopt rules establishing the conditions of use and maximum concentrations of medications, drugs, and naturally occurring substances identified in the Controlled Therapeutic Medication Schedule, Version 2.1, revised April 17, 2014, adopted by the Association of Racing Commissioners International, Inc. Controlled therapeutic medications include only the specific medications and concentrations allowed in biological samples which have been approved by the Association of Racing Commissioners International, Inc., as controlled therapeutic medications. * * * (c) The division rules must include a classification system for drugs and substances and a corresponding penalty schedule for violations which incorporates the Uniform Classification Guidelines for Foreign Substances, Version 8.0, revised December 2014, by the Association of Racing Commissioners International, Inc. The division shall adopt laboratory screening limits approved by the Association of Racing Commissioners International, Inc., for drugs and medications that are not included as controlled therapeutic medications, the presence of which in a sample may result in a violation of this section. (Emphasis added). The title page of the ARCI Document states, “Uniform Classification Guidelines for Foreign Substances and Recommended Penalties and Model Rule.” Each of the remaining pages of the ARCI Document, including those pages that encompass the ARCI Recommended Penalties, identifies the ARCI Document as the “Uniform Classification Guidelines for Foreign Substances.” The Notes Regarding Classification Guidelines, found at page ii, states that “Where the use of a drug is specifically permitted by a jurisdiction, then the jurisdiction’s rule supersedes these penalty guidelines.” (Emphasis added). Rules 61D-6.011 and 61D-6.008 were amended in 2016, in response to the amendments to section 550.2415. Rule 61D-6.008 addresses permitted medications allowed for horses, and rule 61D- addresses the penalties to be imposed for drug violations. Relevant portions of rule 61D-6.011 provide: The penalties in this rule shall be imposed when the stewards or the Division finds that the following substances have been identified by the state laboratory in a urine sample or blood sample collected from a horse participating in a pari-mutuel event: (a) Any medication listed in subsection 61D-6.008(2), F.A.C. [1.-3. provide penalty ranges for first, second, and third offenses] The penalty for any medication or drug which is not described in subsection (1) above shall be based upon the classification of the medication or drug found in the Uniform Classification Guidelines for Foreign Substances, revised December 2014, as promulgated by the Association of Racing Commissioners International, Inc., which is hereby incorporated and adopted herein by reference, https://flrules.org/Gateway/ reference.asp?No=Ref-06400, www.myfloridalicense.com/dbpr/pmw or by contacting the Department of Business and Professional Regulation, 2601 Blair Stone Road, Tallahassee, Florida 32399. The penalty schedule shall be as follows: Class I substances: First violation of this chapter Second violation of this chapter Third or subsequent violation of this chapter Class II substances: First violation of this chapter $3,000 to $5,000 fine and suspension of license 90 days to one year, or revocation of license; $4,000 to $5,000 fine and suspension of license of no less than one year, or revocation of license. $5,000 to $10,000 fine and revocation of license. $250 to $1,000 fine and suspension of license zero to 180 days; Second violation of this chapter Third or subsequent violation of this chapter Class III substances: First violation of this chapter Second violation of this chapter Third or subsequent violation of this chapter Class IV or V substances: First violation of this chapter Second violation of this chapter $500 to $1,000 fine and suspension of license of no less than 180 days, or revocation of license; $1,000 to $5,000 fine and suspension of license of no less than one year, or revocation of license $300 to $500 fine; $500 to $750 fine and suspension of license zero to 30 days, or revocation of license; $750 to $1,000 fine and suspension of license zero to 180 days, or revocation of license. $100 to $250 fine; $250 to $500 fine and suspension of license zero to 10 days; Third violation of this chapter $500 to $1,000 fine and suspension of license zero to 60 days. The Division may consider mitigation or aggravation to deviate from these penalty guidelines. * * * Absent mitigating circumstances, the stewards or the Division shall order the return of any purse, prize, or award from any pari-mutuel event for redistribution when a positive test for a drug or medication described in paragraphs (1)(a), (1)(b), (2)(a), or (2)(b) is reported by the state laboratory and confirmed through the hearing process. The stewards or the Division may order the return of any purse, prize, or award for redistribution when the positive test of a drug or medication reported by the state laboratory is not described in paragraphs (1)(a), (1)(b), (2)(a), or (2)(b) of this rule. In the event the stewards or Division orders the return of the purse, prize, or award for redistribution as described in this subsection, the reason(s) for the redistribution shall be provided in writing. (Emphasis added). Rule 61D-6.011 varies from the penalty provisions in the ARCI Recommended Penalties in several respects. First, in the drug classification tables in the ARCI Document, which the rule incorporates by reference, there are columns to identify the drug or substance; trade name, if any; drug class; and penalty class. Not all drugs in a drug class are in the same penalty class. For example, all class 1 drugs are in penalty class A, with the exception of cocaine, morphine, and strychnine, which are in penalty class B. The majority of class 2 drugs are also in penalty class A, with the exception of caffeine, carisoprodol, diazepam, hydroxyzine, ketamine, levamisole, lidocaine, mepivacaine, and romifidine, which are in penalty class B. Class 3 drugs are generally split between penalty classes A and B, and class 4 drugs include both penalty classes B and C. Similarly, class 5 drugs are split between penalty classes C and D. It is clear from the text of the ARCI Document that the drug classifications and the penalty guidelines are intended to work together as a comprehensive approach to the impermissible drugging of racing horses. In the Recommended Penalty and Model Rule portion of the ARCI Document, there are separate penalties recommended for licensed trainers and for owners. For trainers, class A penalties include a minimum fine of $10,000 or 10% of the total purse, whichever is greater, absent mitigating circumstances, to a maximum of $25,000 or 25% of the purse with aggravating factors for a first offense. For a second offense in any jurisdiction, the fine amount is $25,000 or 25% of the total purse, whichever is greater, absent mitigating circumstances, and may increase with aggravating circumstances to a maximum of $50,000 or 50% of the purse, whichever is greater. For a third offense in any jurisdiction, the minimum fine is $50,000 or 50% of the total purse, whichever is greater, absent mitigating circumstances, and may increase with aggravating circumstances to a maximum of $100,000 or 100% of the purse, whichever is greater. For owners, the first and second offenses include disqualification and loss of purse. The penalty for a third offense includes disqualification, loss of purse, and a $50,000 fine. For owners and trainers, the monetary penalties may exceed the maximum permitted under section 550.4215(3), which authorizes a fine not exceeding the purse or sweepstakes earned by the animal, or $10,000, whichever is greater. The parties have submitted the House and Senate Bill analyses that address the amendment to section 550.2415 at issue here.1/ The House of Representatives Final Bill Analysis for CS/HB 239 includes the following statements: The bill changes the maximum fine for violations from $5,000 to $10,000 or the amount of the purse, whichever is greater. The bill also reduces the time for the division to begin administrative prosecutions for violations from 2 years to 90 days. The bill requires the division to adopt the Association of Racing Commissioners International (ARCI) rules regarding the medications, drugs, and naturally occurring substances given to race animals, including a classification system for drugs that incorporates ARCI’s Penalty Guidelines for drug violations, and updates current methodologies used in testing procedures. . . . * * * Effect of Proposed Changes * * * The bill requires that the penalty schedule for violations must incorporate the Uniform Classification Guidelines for Foreign Substances, Version 8.0, revised December 2014, by the ARCI. These guidelines are “intended to assist stewards, hearing offices and racing commissioners in evaluating the seriousness of alleged violations of medication and prohibited substance rules. ” The bill analysis for CS/SB 226 contains similar provisions stating that the ARCI Penalty Guidelines must be incorporated into a rule adopted by Respondent. The penalty guidelines included in rule 61D-6.011 do not incorporate the ARCI Recommended Penalties. The PMW’s website includes a listing of statutes and rules, with links to the rules. Included in that list is a statement that “The Association of Racing Commissioners International, Inc. ‘Uniform Classification Guidelines for Foreign Substances and Recommended Penalties and Model Rule’ is adopted and incorporated by rule.” Notwithstanding this statement, the ARCI Recommended Penalties are not incorporated into rule 61D-6.011 or any other rule identified in this proceeding. The rule provides for consideration of a number of aggravating and mitigating circumstances, when warranted, that allow for deviation from the identified penalty guidelines. As noted above, rule 61D-6.011(1) refers to the medications listed in rule 61D-6.008. Rule 61D-6.008 provides in pertinent part: Permitted medications for horses: The prescription medications defined in this rule shall be permitted under the conditions set forth to conserve and protect the health of the horse which is entered to race. All such medications shall be procured and administered by a licensed veterinarian, except where a valid prescription or dispensing occurs in compliance with the requirements of Chapter 474, F.S. The following permitted medications at concentrations less than or equal to the following schedule shall not be reported by the racing laboratory to the Division as a violation of Section 550.2415, F.S. [list of medications and concentration levels for each one]. Thus, subsection (1) of rule 61D-6.011 addresses violations where too much of a permitted medication is found in a race day sample, whereas subsection (2) addresses violations based upon prohibited medications. Petitioner presented the testimony of Scott Hay and Edward Martin in support of its contention that the penalty guidelines adopted by PMW are arbitrary and capricious. Dr. Scott Hay is a veterinarian who has worked with thoroughbred racehorses since 1988. He is a member of the American Association of Equine Practitioners, the American Veterinary Medical Association, and the Florida Veterinary Association. He serves as co-chair on the scientific advisory committee for the Racing Medication and Testing Consortium, which worked on the development of the ARCI Document. Dr. Hay was familiar with the ARCI Document and described the process used to determine threshold levels for medications. He testified that the scientific advisory committee relied extensively on the expertise of some of its members to determine the appropriate levels of medications that would be appropriate under the drug classifications. On the other hand, while he is familiar with PMW’s rules and was involved in the rulemaking workshops when the rules were first amended after the 2015 statutory change, he did not believe that he made any comments on these particular rules during that process. He did not provide any testimony that provided information on what methodology PMW used when formulating its penalty guidelines. Mr. Martin works for the Association of Racing Commissioners International as its president and has done so since 2005. He testified that the Racing Medication and Testing Consortium is a consortium of racing industry organizations that advises ARCI and regulatory entities on medication and anti-doping policies. He described the process by which the scientific advisory committee meets and considers recommendations on changes to policies. According to Mr. Martin, the scientific advisory committee relies on the collective judgment of the pharmacologists, chemists, toxicologists, and veterinarians to provide advice and expertise about appropriate public policy. The controlled therapeutic medication schedule is an attempt to provide some consistency in the regulation of some commonly used medications that are considered appropriate for equine care. The schedule recommends a threshold for testing, and only if that threshold is exceeded, is there a violation of the rules of racing. Mr. Martin pointed to the reference in rule 61D-6.011 to rule 61D-6.008. He testified that what “struck him” about the Florida rules is that rule 61D-6.008 encompasses the controlled therapeutic list, but rule 61D-6.011(1) appears to provide the same penalty for any violation of a substance itemized in 61D- 6.008. This treatment is not consistent with ARCI’s penalty schedule, but Mr. Martin did not know whether Florida made a conscious decision to impose a different recommended penalty than what is contained in the ARCI Document, and did not know the intent of the drafters with respect to the rule.
