The Issue The issue presented for resolution is whether Florida Administrative Code Rule 61D-6.008 is an invalid exercise of delegated legislative authority as described in section 120.52(8)(c), Florida Statutes.
Findings Of Fact Petitioner is a thoroughbred racehorse trainer holding a professional occupational license issued by the Division of Pari-Mutuel Wagering (PMW). Petitioner has standing to bring this rule challenge under chapter 120. In 2015, the Legislature amended section 550.2415, Florida Statutes (2015), with respect to the Division’s responsibility “to adopt certain rules relating to the conditions of use of maximum concentrations of medications, drugs, and naturally occurring substances.” Ch. 2015-88, Laws of Fla. As amended, section 550.2415(7) provides in pertinent part: (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. (b) The division rules must designate the appropriate biological specimens by which the administration of medications, drugs, and naturally occurring substances is monitored and must determine the testing methodologies, including measurement uncertainties, for screening such specimens to confirm the presence of medications, drugs, and naturally occurring substances. Rule 61D-6.008 was adopted on January 10, 2016. Subsections (1) through (3) of rule 61D-6.008 contain 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., as mandated by section 550.2415(7)(a). Subsection (2) of the rule sets forth the “appropriate biological specimens by which the administration of medications, drugs, and naturally occurring substances is monitored” as mandated by section 550.2415(7)(b). Neither rule 61D-6.008 nor any other rule of the Division, with the exception of Emergency Rule 61DER21-2 (adopted March 4, 2021), contain a provision that designates the testing methodologies, including measurement uncertainties, for screening the designated biological specimens listed in rule 61D-6.008(2) and (3) to confirm the presence of medications, drugs, and naturally occurring substances in horses, as mandated by section 550.2415(7)(b). The Department has noticed proposed rule 61D-6.007, which Petitioner is challenging, in DOAH Case No. 21-1292RP. The proposed rule provides testing methodologies and measurement uncertainties, items that are absent from rule 61D-6.008. However, neither the emergency rule adopted prior to the notice of the proposed rule nor any version of the proposed rule was in existence when rule 61D-6.008 was adopted in 2016. Petitioner’s challenge states the following with respect to rule 61D- 6.008: Fla. Stat. 550.2415(7)(b) mandated that the Division [of Pari-Mutuel Wagering] adopt rules designating: “the appropriate biological specimens by which the administration of medications, drugs, and naturally occurring substances is monitored”, the “testing methodologies”, and “measurement uncertainties” for screening such specimens to confirm the presence of medications, drugs, and naturally occurring substances. While the Rule does designate the appropriate biological specimens to be monitored for each permitted medication, the Rule does not establish the “testing methodologies” and the “measurement uncertainties”, for screening such specimens to confirm the presence of medications, drugs, and naturally occurring substances. Instead of adopting a rule establishing the “testing methodologies” and the “measurement uncertainties”, for screening specimens to confirm the presence of medications, drugs, and naturally occurring substances as required by Fla. Stat. 550.2415(7)(b), the Division has instead, delegated the determination of both the “testing methodologies” and the “measurement uncertainties” to the University of Florida Racing Laboratory. Petitioner is directly affected by the Division’s failure to include both the “testing methodologies” and the “measurement uncertainties” within the Rule, as both the methodology used to test post-race serum samples and the measurement uncertainty for each permitted medication affects the determination of whether there was an amount of permitted medication in excess of the maximum quantum of the permitted medication found in the post-race same taken from the racehorse “Calina’s Song”.
