The Issue Whether Respondent is responsible for three violations of Section 550.2415(1)(a), Florida Statutes, as alleged in the Administrative Complaint, and if so, what penalty should be imposed.
Findings Of Fact Petitioner is the State of Florida, Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering which is created by Section 20.165(2)(f), Florida Statutes. The Division regulates pari-mutuel wagering in the State of Florida. Respondent, Donald S. Abbey, was the holder of a pari-mutuel occupational license, License No. 2013666-1081, that was issued by the Division during the month of May 2001. Hialeah Park is a facility operated by a permit holder authorized to conduct thoroughbred racing and pari-mutuel wagering in the State of Florida. Hialeah Park was so authorized in May 2001. On May 16, 2001, Respondent was the trainer of record and owner of a thoroughbred race horse named “Savahanna.” The horse Savahanna finished second in the first race at Hialeah Park on May 16, 2001. Immediately after the race a urine sample was collected from Savahanna. The urine sample was assigned sample No. 748428 and was shipped to the University of Florida Racing Laboratory. The University of Florida Racing Laboratory tested urine sample No. 748428 and found it to contain Terbutaline. On May 16, 2001, Respondent was the trainer of record and owner of a thoroughbred race horse named "Hada Clue." The horse Hada Clue finished second in the third race at Hialeah Park on May 16, 2001. Immediately after the race, a urine sample was collected from Hada Clue. The urine sample was assigned sample No. 748440 and was shipped to the University of Florida Racing Laboratory. The University of Florida Racing Laboratory tested urine sample No. 748440 and found it to contain Terbutaline. On May 18, 2001, Respondent was the trainer of record and owner of a thoroughbred race horse named "Sounds Like Scott." The horse Sounds Like Scott finished second in the fifth race at Hialeah Park on May 16, 2001. Immediately after the race a urine sample was collected from Sounds Like Scott. The urine sample was assigned sample No. 748536 and was shipped to the University of Florida Racing Laboratory. The University of Florida Racing Laboratory tested urine sample No. 748536 and found it to contain Terbutaline. Terbutaline is a bronchodilator and a Class 3 drug according to the Association of Racing Commissioners International classification system. In his Election of Rights, Respondent indicated that he was not the trainer of record. Specifically, he indicated that he had hired a person named Dimitrius Monahas as the trainer with the knowledge of the stewards of Hialeah Park. State Steward Walter Blum testified at the hearing that Respondent was, in fact, the trainer of record for the horses Savahanna, Hada Clue, and Sounds Like Scott. At Hialeah, the trainer of record is determined at the time stall spaces are assigned at the beginning of a meet. Respondent’s name appears in the official programs as both the trainer and the owner of the horses at issue. There is a procedure at Hialeah to notify the stewards of a change in trainer. However, Respondent did not notify the stewards of any change. Dimitrius Monahas signed sample tags for sample Nos. 748440 and 748536 as the owner’s witness. The sample tags list Respondent as both the trainer and owner of the horses.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Division of Pari-Mutuel Wagering enter a final order in this matter suspending Respondent’s occupational license for a period of ten (10) days and imposing a fine of $850.00. It is further recommended that the Division of Pari-Mutuel Wagering order that any purse received as a result of the second-place finishes of two of the races in question be returned. DONE AND ENTERED this 16th day of October, 2002, in Tallahassee, Leon County, Florida. DON W. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of October, 2002. COPIES FURNISHED: Donald S. Abbey Post Office Box 1199 Pilot Point, Texas 76258-1199 Joseph M. Helton, Jr., Esquire Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-2202 David J. Roberts, Director Division of Pari-Mutuel Wagering Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202
Findings Of Fact 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 Regulation, and is charged by law with regulatory authority over Florida's pari-mutuel wagering industry. On May 5, 1979, Respondent issued an administrative complaint, seeking to fine, suspend or revoke Petitioner's occupational license, alleging that Petitioner had violated Rules 7E-4.25(16) and 7E-4.02(17)(a), Florida Administrative Code. The administrative complaint alleges that on December 7,1 979, a search of Petitioner's automobile, conducted pursuant to Rule 7E-4.02(3), Florida Administrative Code, revealed certain prohibited drugs and other items including Didrex, Narcan, Levophed, cannabis or marijuana, and hypodermic syringes and needles. The facts alleged in the administrative complaint presently are pending before the Division of Administrative Hearings in Division of Administrative Hearings Case no. 80-1147.
The Issue The issue in this case is whether Respondent, Srdan Saric, committed violations of Chapter 550, Florida Statutes (2005), and Florida Administrative Code Chapter 61D-6, as alleged in an Administrative Complaint filed with the Department of Business and Professional Regulation in DBPR Case Nos. 2005042972, 2005039423, and 2005042974, and amended January 30, 2006; and, if so, what disciplinary action should be taken against his State of Florida pari-mutuel wagering occupational license.
Findings Of Fact The Parties. Petitioner, the Department of Business and Professional Regulation, Division of Pari-mutuel Wagering (hereinafter referred to as the "Division"), is an agency of the State of Florida created by Section 20.165(2)(f), Florida Statutes, and charged with the responsibility for the regulation of the pari- mutuel wagering industry pursuant to Section 550.0251, Florida Statutes. Respondent, Srdan Saric, is, and was at the times material to this matter, the holder of a pari-mutuel license, number 2016930-1021, issued by the Division. During the time period at issue in this case, Mr. Saric trained harness race horses and was a jockey at the harness race course of Pompano Park Racing (hereinafter referred to as "Pompano Park"), located in Pompano Beach, Florida. Pompano Park is a harness horse racing facility authorized to conduct pari-mutuel wagering in Florida and is the location of all activity material to this matter. On July 27, 2005, Respondent was the trainer of record and jockey for two standard bred harness race horses, known as "Youngbro Clever" and "Swift Courier." Both horses were owned by Jeanette Glowacki. The Events of July 27, 2005. Youngbro Clever and Swift Courier were both scheduled to race at Pompano Park the evening of July 27, 2005. Youngbro Clever was to run in the fourth race and Swift Courier was to run in the twelfth race. The fourth race was scheduled to begin at approximately 8:15 to 8:30 p.m. Both horses were being housed in Barn C of Pompano Park. That barn was shared by the two horses being trained by Mr. Saric and horses owned and trained by Michael Snyder. Tack boxes, where equipment was stored, were located at Barn C adjacent to the wall just outside the horse stalls. Those located in the area where Mr. Saric's horses were housed were considered to be within areas of Barn C which he occupied or had the right to occupy. The tack boxes are part of the premises within the grounds of a racing permitholder where racing animals were lodged or kept and which Mr. Saric occupied or had the right to occupy. At approximately 7:30 p.m., on July 27, 2005, Jeremy Glowacki, the son of the owner of Youngbro Clever and Swift Courier and an employee Mr. Saric had previously fired, informed Pompano Park security supervisor Richard Masters that he had witnessed Mr. Saric place syringes in a tack box located just outside Barn C, Stall 8. Based upon Mr. Glowacki's report, Pompano Park security searched the tack box and found a 35 cc hypodermic syringe with needle attached and a 12 cc hypodermic syringe with needle attached. As a result of the discovery of the syringes, Youngbro Clever and Swift Courier were immediately scratched from their scheduled races and were sent to the State Veterinarian for drug testing. Mr. Saric was also suspended from Pompano Park and remained so at the time of the final hearing of this matter. The State Veterinarian drew blood serum sample 173675 from Youngbro Clever and blood serum sample 173680 from Swift Courier. These samples were processed in accordance with established procedures. Both blood serum samples were, along with the two syringes recovered from Mr. Saric's tack box, sent to the University of Florida Racing Laboratory (hereinafter referred to as the "Racing Laboratory"), for analysis. Results of Racing Laboratory Testing. The Racing Laboratory, following applicable procedures, performed an analysis on the syringes found in Mr. Saric's tack box and the blood serum samples taken from Youngbro Clever and Swift Courier. No prohibited substance was detected by the Racing Laboratory analysis of the 35 cc syringe. Flunixin was detected by the Racing Laboratory analysis of the 12 cc syringe. Flunixin is a "non-steroidal anti-inflammatory drug" which can be used to suppress inflammation and provide pain relief to race horses. The Association of Racing Commissioners International, Inc. has classified Flunixin under the Uniform Classification Guidelines for Foreign Substances as a "Class IV" drug. As such, it is considered an "impermissible substance." Flunixin in excess of 200 ng/ml. was also found by the Racing Laboratory in blood serum sample number 173675 which had been collected from Youngbro Clever. Flunixin in excess of 200 ng/ml. was also found by the Racing Laboratory in blood serum sample number 173680, which had been collected from Swift Courier. In addition to Flunixin, the Racing Laboratory test of blood serum sample number 173675 collected from Youngbro Clever and blood serum sample number 173680 collected from Swift Courier also revealed that those samples contained phenylbutazone, or its metabolites, in excess of 16 micrograms per milliliter of serum. Like Flunixin, phenylbutazone is a "non-steroidal anti-inflammatory drug" which can be used to suppress inflammation and provide pain relief to race horses. Pursuant to Florida Administrative Code Rule 61D- 6.008, phenylbutazone, unlike Flunixin, may be administered to a race horse in an amount which, following the running of a race, will result in the horse's blood serum being found to contain less than 8 micrograms per milliliter of serum. Dr. Cole testified convincingly and credibly that Flunixin and phenylbutazone had been administered to Youngbro Clever and Swift Courier within 24 hours of their scheduled races on June 27, 2005. Youngbro Clever and Swift Courier, having been administered Flunixin and phenylbutazone within 24 hours of their scheduled races, would have been able to compete at a higher level in their scheduled races than if these drugs had not been ministered to them. According to Dr. Cole, whose unrebutted testimony in this regard is also credited, if Youngbro Clever and Swift Courier had been allowed to run their scheduled races, blood samples collected immediately after their respective races would have revealed the presence of phenylbutazone in each horse in excess of 8 micrograms per milliliter of serum. Mr. Saric's Prior Disciplinary History. Mr. Saric has previously been disciplined by the Division on two separate occasions. On both occasions, Mr. Saric was fined because Methocarbamol (a skeletal muscle relaxant and Class IV drug) was detected in urine samples collected from Youngbro Clever as part of the post race analyses. The first violation for which Mr. Saric was disciplined took place on December 6, 2004. Mr. Saric was fined $250.00 for this violation of Section 550.2415(1)(a), Florida Statutes (2004), and Florida Administrative Code Rule 61D- 6.011(1). The second violation for which Mr. Saric was disciplined took place on April 15, 2005. Mr. Saric was fined $500.00 for this violation of Section 550.2415(1)(a), Florida Statutes, and Florida Administrative Code Rule 61D-6.011(1). Mr. Saric's Responsibility for Youngbro Clever and Swift Courier. While Mr. Saric attempted, unsuccessfully, to prove that he did not place the syringes in his tack box or inject Flunixin and phenylbutazone into Youngbro Clever and Swift Courier, the evidence failed to support such a finding. The evidence also failed to prove that Jeremy Glowacki was responsible for these violations. More importantly, the evidence failed to prove that Mr. Saric took the measures necessary to protect Youngbro Clever and Swift Courier in particular and the racing industry generally from harm, especially considering the fact that this case involves the third time that Youngbro Clever has tested positive for a prohibited substances in his blood.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the final order be entered by the Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering, finding that Srdan Saric violated Sections 550.105(5)(b) and 550.2415(1)(c), Florida Statutes, and Florida Administrative Code Rules 61D-6.004(2) and 61D-6.011(1), as described in this Recommended Order; suspending his license for a total period of two years from the date of the final order; and requiring that he pay a fine of $6,000.00. DONE AND ENTERED this 14th day of April, 2006, in Tallahassee, Leon County, Florida. S LARRY J. SARTIN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of April, 2006. COPIES FURNISHED: S. Thomas Peavey Hoffer Ralf E. Michels Assistants General Counsel Department of Business and Professional Regulation Division of Pari-Mutuel Wagering Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202 Rose H. Robbins, Esquire One Boca Place 2265 Glades Road Suite 324 Atrium Boca Raton, Florida 33431 David J. Roberts, Director Division of Pari-Mutuel Wagering Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Josefina Tamayo, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202
The Issue Whether Respondent's policy of treating "Gretna-style" barrel match racing as the legal equivalent of traditional quarter horse racing, i.e., a legitimate pari-mutuel wagering event for which a quarter horse racing permitholder can obtain an annual operating license, constitutes an agency statement of general applicability that implements, interprets, or prescribes law or policy in violation of section 120.54(1)(a), Florida Statutes (2012).1
Findings Of Fact Parties Respondent Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering (the "Division"), is the state agency responsible for implementing and enforcing Florida's pari-mutuel laws. Its duties include the licensing and regulation of all pari-mutuel activities in Florida. Petitioner Florida Quarter Horse Racing Association ("FQHRA") is a nonprofit Florida corporation located in Tallahassee, Florida. FQHRA's main function is to promote the ownership, breeding, and racing of quarter horses, a function which includes representing individuals who have an interest in racing quarter horses in Florida. FQHRA, moreover, is assigned functions by statute related to quarter horse racing in Florida, which include representing quarter horse owners in negotiating purse agreements with quarter horse permitholders, pursuant to section 849.086(13)(d)3, Florida Statutes, and setting the schedule of racing at quarter horse racetracks, pursuant to section 550.002(11). Petitioner Florida Quarter Horse Breeders and Owners Association ("FQHBOA") is a nonprofit Florida corporation located in Tallahassee, Florida. FQHBOA's main functions are to receive and distribute breeder and owner awards for quarter horse races in Florida. Section 550.2625(5)(a), Florida Statutes, designates FQHBOA to be the recipient of a portion of the racing revenues from all quarter horse races conducted in Florida, which funds are to be used for the promotion of racing quarter horses in Florida. FQHBOA administers the accredited Florida-bred program and breeders' awards for quarter horses. Gerald Keesling is an owner, breeder, and trainer of race horses competing in quarter horse racing. He has been involved with quarter horse racing for more than thirty years and has raced quarter horses at various tracks around the country, including Pompano Park and Hialeah Park in Florida. Intervenor is an entity formed and operated for the purpose of advancing the interests of "new" quarter horse permitholders in the legislature and before administrative agencies. According to its corporate representative, Intervenor was formed "to advocate for the elimination of the restrictions" facing new quarter horse permitholders in order "to allow these new permitholders to secure the gaming rights that all of the other permitholders around the state had secured." Pari-mutuel Wagering Gambling is considered to be inherently dangerous to society.3 This societal disapprobation is reflected in the widespread prohibitions on gambling activities found in Florida law. Indeed, an entire chapter of the Florida Statutes——chapter 849——is devoted to criminalizing many forms of gambling. This case involves a species of gambling known as lotteries, and a specific kind of lottery referred to as pari-mutuel wagering. In pari-mutuel wagering, bets placed on the outcome of a race or game are pooled, and the payout to the winners is drawn from that pool, so that the winners divide the total amount bet (the "handle"), less management expenses and taxes. See § 550.002(13),(22), Fla. Stat. The Florida Constitution categorically prohibits lotteries such as pari-mutuel pools, but makes an exception for certain types of pari-mutuel activities, which the legislature may permit in the exercise of its police powers. See Art. X, § 7, Fla. Const.4 Pursuant to chapter 550, Florida Statutes, which is known as the Florida Pari-mutuel Wagering Act (the "Act"), the legislature has legalized pari-mutuel wagering on dog racing, jai alai, and three distinct types of horseracing, namely harness racing, in which standardbred horses pull two-wheeled "sulkies" guided by a driver; thoroughbred horse racing; and quarter horse racing. The Act empowers the Division to regulate and closely supervise pari-mutuel wagering, which is a criminal activity if not conducted in compliance with the Act. See, e.g., § 550.255, Fla. Stat. Any person who desires to conduct pari-mutuel operations on one of the five types of authorized pari-mutuel activities must apply to the Division for a permit. Such a permit is a necessary, but not sufficient, condition of conducting pari-mutuel performances; a license, too, is required. Before a permit can become effective, however, it must be approved by a majority of the voters in the county in which the applicant proposes to conduct pari-mutuel wagering activities. See § 550.054(2), Fla. Stat. After the Division has issued a permit and the permit has been approved in a ratification election, the permitholder must apply to the Division for an annual license to conduct pari-mutuel operations. See § 550.0115, Fla. Stat. This permitholder license——sometimes also called an "annual license," "operating license," "dates license," or simply a "license"——is "an annual license issued by the division to conduct pari-mutuel operations at a location specified in the permit for a specific type of pari-mutuel event specified in the permit." See Fla. Admin. Code R. 61D-2.001(12). The annual license gives a permitholder authority to conduct the pari-mutuel wagering activity authorized under its permit on the dates identified in the license. The Act mandates that the Division exercise its regulatory power to "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," which "rules must be uniform in their application and effect." See § 550.0251(3), Fla. Stat. Quarter Horse Racing Quarter horse racing is widely known as a type of horse racing in which multiple horses——specifically, American Quarter Horses——compete head-to-head in short-distance races, running at high speed. The American Quarter Horse breed took its name from the length of the race in which its members excel, i.e., the quarter mile. The American Quarter Horse Association ("AQHA") is an organization of quarter horse owners, breeders, and trainers. It publishes the official breed registry for quarter horses. In addition, AQHA issues rules and standards for quarter horse racing conducted throughout the United States and abroad, and it keeps official records relating to all quarter horse races registered with AQHA. AQHA publishes an Official Handbook of Rules and Regulations, which includes a section devoted to Racing Rules and Regulations setting forth the standards and requirements that a race must meet to be recognized by AQHA as a quarter horse race. AQHA works through state-level affiliates. FQHRA is AQHA's affiliate for the state of Florida. Quarter horse racing is part of the long established pari-mutuel racing industry in Florida, which dates back to the 1930s. Before 2011, the type of quarter horse race on which pari-mutuel wagering was conducted in Florida involved a contest between approximately eight to ten horses sprinting side-by-side on a flat, oval racetrack, beginning at a single starting gate and ending when the horses crossed a common finish line. Races of this type——which will be referred to as "traditional" quarter horse races——were conducted at two of Florida's historic pari- mutuel racetracks, Pompano Park and Hialeah Park. For almost eighteen years beginning in the early 1990s, no pari-mutuel quarter horse racing was conducted in Florida. During this time, owners of racing quarter horses, such as Mr. Keesling, transported their horses to other states to participate in quarter horse racing. In the summer of 2005, AQHA organized a meeting in Ocala, Florida, to gauge and foster interest in the development of quarter horse racetracks in Florida. AQHA's efforts eventually bore some fruit. In 2008, the Division issued a permit to conduct pari-mutuel wagering on quarter horse races at Hialeah Park. Quarter horse racing resumed at Hialeah Park in 2009 and has continued under annual licenses issued each year since then. The events at Hialeah Park are traditional quarter horse races. As of this writing, Hialeah Park is the only pari-mutuel facility in Florida where quarter horse races recognized by AQHA are held. Barrel Racing Barrel racing is a kind of obstacle race on horseback——often performed at rodeos, horse shows, and fairs——in which a horse and rider complete a cloverleaf pattern around three barrels arranged in a triangular shape inside a rectangular "arena." Barrel racing is a separate discipline from horse racing conducted on flat tracks, such as traditional quarter horse racing. A challenge involving speed, strength, and agility, barrel racing is a timed event, with each contestant running individually, one after the other, in an attempt to complete the course in the fastest time possible. A penalty of five seconds is added to a horse's time for colliding with a barrel. The outcome of the contest is determined by each horse's respective time; the winner is the horse having the shortest time. Gretna Racing——The Permit On March 18, 2008, Gretna Racing, LLC ("Gretna Racing"), submitted an application to the Division seeking a pari-mutuel permit to operate a quarter horse racetrack in Gretna, a small city in Gadsden County, Florida. Included in the application were a business plan summary and a drawing of the planned racetrack. In its business plan, Gretna Racing informed the Division of its intent to construct "a Quarter Horse racetrack that will allow racing at standard Quarter Horse racing distances." The drawing attached to the application depicted a conventional oval racetrack of the type on which traditional quarter horse races are run. On July 31, 2008, Gretna Racing sent the Division a revised site plan showing a modified quarter horse racetrack design known as a "J-loop." Environmental concerns had prompted the change in the proposed shape of the planned racetrack. As drawn, the J-loop track was capable of accommodating traditional quarter horse races. At no time while Gretna Racing's application was pending did Gretna Racing tell the Division that it planned to conduct any type of pari-mutuel activity other than traditional quarter horse racing or to construct any type of race course other than an oval or J-loop quarter horse racetrack. On September 12, 2008, the Division issued a permit to Gretna Racing for the conduct of pari-mutuel wagering on quarter horse racing in Gadsden County. The permit authorizes Gretna Racing to "Operate A Quarter Horse Racetrack". After receiving the permit, Gretna Racing did not build either an oval race course or a J-loop quarter horse racetrack as depicted in its application. As of this writing, no such racetrack has been constructed at Gretna Racing's pari- mutuel facility in Gadsden County. Gretna Racing——The License On September 6, 2011, Gretna Racing submitted an application to the Division for an annual license authorizing operating dates on which to conduct pari-mutuel wagering pursuant to its quarter horse racing permit. In the following weeks, Gretna Racing communicated frequently with the Division regarding Gretna Racing's intent to conduct a novel form of barrel racing as a pari-mutuel wagering event under its permit. The type of contest that Gretna Racing had in mind had never before been licensed or regulated by the Division as a pari- mutuel event. At a meeting with Division officials in September 2011, Gretna Racing delivered a PowerPoint presentation in which it characterized the proposed pari-mutuel activity as "the Barrel Horse Race" and advocated for its "[i]ntroduction as a Pari-mutuel Wagering event in Florida . . . ." Among other things, the PowerPoint slide show included a description of the race pattern for barrel racing as a "traditional cloverleaf with 75 feet between barrels 1 and 2 and 90 feet between barrels 2 and 3." This narrative was accompanied by the following diagram, which depicts a single horse running around three barrels in a rectangular arena: Although Gretna Racing referred to the performances it proposed to conduct as "barrel racing"——a term which the parties have continued to use in this litigation——the "Gretna-style" barrel race differs somewhat from the traditional rodeo-style barrel race. The unique twist that Gretna-style barrel racing introduces is the "match race" format, which entails placing two separate arenas next to each other and running two horses simultaneously around two separate, albeit adjacent, barrel courses whose "[p]atterns are identical," according to Gretna Racing's PowerPoint presentation. In the materials that Gretna Racing gave to the Division while lobbying for approval of its first annual license, the separate courses were depicted as follows: As the foregoing pictures show, instead of having the competing horses run one at a time the way traditional barrel races are conducted, the Gretna-style contest requires the horses to run in pairs, with each horse maneuvering around its own barrel course, inside a separate, fenced-in arena, the two arenas separated by an eight-foot-wide alley. Thus, Gretna- style barrel racing is basically traditional barrel racing "times two", i.e., two rodeo-style barrel races performed at once. This gives the event the appearance, at least, of a match race between two horses. In reality, however, the Gretna-style barrel match race ("BMR"5) is not so much a competition between two horses as it is an event comprising two individual performances by horses competing independently against the clock on their respective obstacle courses. This is because each horse, isolated in its own enclosed arena, separately attempts to negotiate the barrels in the quickest time possible; there is negligible (if any) competitive interaction between the horses in the "match race." Moreover, inasmuch as the most important indicator of a barrel- race horse's success is its personal time, being the first horse to finish——and hence the winner of——a given BMR is something of an arbitrary achievement, determined by the convenience of the pairing instead of the intrinsic nature of the competition. For any BMR between horses A and B, the winner——whichever completes the obstacle course the fastest——could just as well be determined by running the horses one after the other, in the traditional rodeo-style barrel racing format. BMR artificially imposes the determinative element of "order of finish" on a type of contest that does not inherently require simultaneity of performances as a necessary condition of the competition.6 The Division employees reviewing Gretna Racing's application for licensure had never seen anything like BMR before. They were acutely aware, from the beginning, that Gretna Racing's proposal to conduct pari-mutuel operations on this new kind of contest, with which the Division was unfamiliar, was hardly routine, raising as it did questions of first impression for the Division. As one of them wrote in an e-mail to the Division director dated September 9, 2011, Gretna Racing wanted "to do barrel racing instead of traditional quarter horse racing, along with the possibility of other timed events like calf roping and cutting horse events. Not traditional venues for us." Understandably, Gretna Racing's application was the subject of much internal discussion, genuine disagreement, and, predictably, some controversy. The details of these deliberations are unimportant. What matters——and what the evidence clearly shows——is that the Division knew that Gretna Racing, as a quarter horse permitholder, was seeking approval to conduct pari-mutuel wagering on BMR, an original type of contest that differed substantially from traditional quarter horse racing. Further, as the result of lobbying on both sides of the issue, the Division was thoroughly familiar with the essential attributes of the BMR performances Gretna Racing planned to hold. Finally, the Division understood that, if licensed, Gretna Racing would conduct pari-mutuel operations on BMR to the exclusion of traditional quarter horse racing. In a September 30, 2011, e-mail to Joe Dillmore, who had by then been named acting director of the Division, an attorney for Gretna Racing advanced a legal argument for allowing BMR as a new pari-mutuel activity, which was premised on section 550.334(5), Florida Statutes. That statute allows a quarter horse permitholder to substitute races of other breeds of horse——including the American Cracker Horse——for up to "50 percent of the quarter horse races during its meet." Gretna Racing asserted that the cracker horse is a "'rodeo' breed" whose members compete in "equestrian events such as barrel racing, pole bending, stump racing, and calf roping"——but not flat track racing. On that basis, Gretna Racing contended that the legislature, in enacting section 550.334(5), must have "intended for [the American Cracker Horse] to be wagered upon via its widely accepted and practiced racing, namely barrel racing and the like." Gretna Racing argued that the barrel match "racing [it had] proposed . . . meets the statutory definition of racing under a quarter horse permit." It is clear from the evidence that, in submitting its application and seeking approval to conduct pari-mutuel wagering on BMR, Gretna Racing realized it needed the Division to interpret the Act as having legalized pari-mutuel wagering on BMR. Gretna Racing urged the Division to implement such an interpretation through the issuance of an annual license to Gretna Racing authorizing performances of BMR as a pari-mutuel event. On October 19, 2011, the Division issued an annual operating license, number 542, to Gretna Racing, which gave the licensee the authority to conduct 41 total performances under its quarter horse racing permit during the 2011/2012 season. The license does not mention BMR or any other pari-mutuel activity. As a matter of law, however, the license necessarily gave Gretna Racing approval to hold performances of the "specific type of pari-mutuel event specified in [its] permit," i.e., quarter horse racing, and only such performances; the license could do nothing else. See Fla. Admin. Code R. 61D- 2.001(12). Thus, the issuance of license no. 542 at once manifested and implemented the Division's determination that BMR is quarter horse racing for purposes of the Act. Had the Division not made such a determination, it could not have issued license no. 542, for it knew that Gretna Racing intended to hold BMR performances. Nevertheless, the Division was reluctant to express this determination in an unambiguous public declaration, and this reticence has remained throughout the instant proceeding. For example, on October 4, 2011, a couple of weeks before the issuance of license no. 542, a writer for BloodHorse.com, an online trade magazine, sent an e-mail to the Division's spokesperson inquiring "whether [the Division] has determined if barrel racing is permissible for a Quarter Horse permit holder." The spokesperson drafted and circulated internally, via e-mail, a proposed response, namely: "The Department has not made a determination on this subject matter." Department of Business and Professional Regulation Secretary Ken Lawson rejected this, writing in a reply e-mail: "Don't like the answer. We are not deciding on the merits of barrel racing, only on the racing days." The Division, however, of necessity would decide "on the merits" whether BMR was licensable as a pari-mutuel activity under a quarter horse racing permit because that, and not the proposed racing schedule, was the central——and only controversial——question Gretna Racing's application presented. On October 20, 2011, the day after Gretna Racing had received its first annual license, the same BloodHorse.com writer asked the Division to answer the following questions: *What are the reasons under Florida law that you determined it is permissible for Gretna to use its [quarter horse] permit to have pari-mutuel barrel racing? *Does this approval set a precedent for other Florida [quarter horse] permit holders to use them for pari-mutuel barrel racing? *Barrel racing is new under [the Division]. What are some of the major steps needed for riders, judges and others to obtain licenses? In response, the spokesperson sent out what she called a "canned statement" saying that "[a]fter a careful review of the guidelines and statutes as set forth by the Legislature, the Department has determined that [Gretna Racing's] application meets the requirements." In lieu of making a clear public statement announcing the policy behind the issuance of license no. 542, the Division has advanced various theories whose common denominator is the attempt to explain why this license does not reflect, manifest, implement, or announce a decision of consequence to anyone besides Gretna Racing. At hearing, for example, the Division (through the testimony of Mr. Dillmore) took the position that everything regarding pari-mutuel wagering which is not forbidden under the Act is allowed, and that therefore——because the Act does not explicitly prohibit BMR——the Division had to grant Gretna Racing's application.7 This explanation, which turns chapter 550 on its head, is the Division's attempt to deny having given the Act a construction that legalizes BMR as a pari-mutuel activity, by acknowledging only a much narrower (and legally irrelevant) determination, i.e., that the Act does not plainly prohibit BMR.8 At another point during the hearing, the Division's attorney articulated the Division's position as being "that . . . whether [the race is] around barrels" or traditional quarter horse racing, "it is all quarter horse racing."9 This statement is significant because, in its Joint Prehearing Stipulation (joined by Intervenor but not by Petitioners), the Division stated that it has "consistently . . . giv[en] [statutory] terms their plain and ordinary meaning ascertainable by reference to a dictionary." The Division asserted, further, that the meanings of such terms as "'race', 'contest', 'horserace', and 'horseracing' are . . . readily apparent and available via reference to a dictionary." The logical implication of these statements, taken together, is that the Division believes BMR, like traditional quarter horse racing, comes within the plain and ordinary meaning of the term "horse race" (and its variants) as used in the Act, and for that reason is a licensable pari-mutuel activity. This tells that the Division found BMR to be allowed under (as opposed to being, merely, not forbidden by) the Act because the Act permits pari- mutuel wagering operations on quarter horse racing. In its Post-Hearing Brief, the Division tried to tie its positions together in a unified theory of non-responsibility for any general policy regarding pari-mutuel wagering on BMR. The Division's global theory begins with the premise that the agency lacks specific rulemaking authority to define "horseracing."10 From there, the Division reasons that, in carrying out its duties, which include issuing licenses to permitholders, it must implement the statutory language without expanding, limiting, or defining what is or is not meant by "horse racing" and "quarter horse racing." Confusingly, however, the Division simultaneously asserts that the "determination of what is and what is not horse racing is a matter within the exclusive jurisdiction of the Division . . . as the agency assigned the responsibility of administering Chapter 550." Resp. to the Order Re Off'l Recog'n, etc., at 18. The Division attempts to reconcile these seemingly inconsistent positions by drawing a distinction between (a) what it calls "licensing 'policy'" and (b) quasi-legislative policy affecting a wider class of persons.11 When making "licensing policy," the Division believes it can define horseracing for a particular permitholder only; this, in fact, and nothing more, is what it claims to have done in connection with Gretna Racing's application for licensure.12 Yet, the Division apparently felt that, in evaluating Gretna Racing's application, it needed to apply the most inclusive meaning of "horseracing" that reason will allow because, in its view, the pertinent statutes neither restrict the term "horseracing" (except to the extent that the use of certain breeds is required) nor prohibit barrel racing. Thus, under the Division's theory, upon its receipt of Gretna Racing's application for an operational license, the Division's duty was merely to grant or deny the application within 90 days.13 Lacking the power to put limits on horseracing, at least for all persons who would be affected by such limitations, and finding none in the statutes, the Division had to grant the application, given that Gretna Racing possessed a valid quarter horse racing permit and BMR is a form of "horseracing" in at least the broadest sense of the word. At bottom, the Division's position rests on the notion that the intensional meaning of the general term "horse race" (and its variants) as used in the Act includes BMR within its extensional meaning. This statement is of little value, however, without knowing just what attributes the Division regards as common to (and shared only by) all of the contests denoted by the term "horse race"——without knowing, in other words, what the Division considers to be the intension of the operative term. Because the intension of a term determines its extension, i.e., the collection of the objects named, denoted, or referred to thereby, the Division's statement regarding the common attributes of a "horse race" (its intensive definition) is essential for evaluating whether the Division has applied the term correctly and, more important, for deciding whether——as Petitioners contend——the Division has redefined the term so as to expand the scope of pari-mutuel wagering otherwise allowable under the Act. The definition of "horseracing" is critical because any contest that constitutes a licensable horse race for one permitholder must likewise be licensable for all similarly situated permitholders who seek legal sanction to conduct horseracing performances under the Act. Contrary to the Division's theory of "licensing policy," there cannot be one definition of horseracing for this permitholder and another definition for that one. As should be self-evident, the definition of "horse race" for purposes of chapter 550 must apply equally to everyone who seeks to conduct pari-mutuel wagering on horseracing. If, therefore, as Petitioners maintain, the Division has given the term "horse race" a meaning that is not readily apparent from a literal reading of the statutes, then such a definition would constitute a statement of general applicability. Whether the Division has done so will be discussed below. The Consequences of Licensing Gretna Racing Soon after receiving its first annual license, Gretna Racing began conducting pari-mutuel wagering on BMR at its facility in Gadsden County, holding its first performance on December 1, 2011. The BMR performances conducted by Gretna Racing pursuant to its license were substantially the same as they had been described to Division officials while Gretna Racing's application for licensure was under consideration in September and October 2011. Prior to October 19, 2011, the Division had never approved pari-mutuel wagering on BMR performances. In fact, governmentally sanctioned pari-mutuel wagering on barrel racing had never occurred in Florida or anywhere else in the United States until Gretna Racing commenced operations in December 2011. The pari-mutuel barrel match racing as approved by the Division and conducted by Gretna Racing is not recognized or registered by AQHA as quarter horse racing. AQHA does not keep records of the results of the BMR contests held at Gretna Racing's facility as it does for the traditional quarter horse races conducted at Hialeah Park. Because only two horses compete in each race, BMR requires substantially fewer horses and personnel than traditional quarter horse racing as conducted at Hialeah Park. The handle and purses are much smaller,14 too, which means that as a pari-mutuel event, BMR is less lucrative than traditional quarter horse racing for many participants. As currently configured, Gretna Racing's facility cannot accommodate traditional quarter horse racing. At the time of hearing, Gretna Racing's facility was the only pari- mutuel racing plant in Florida whose race courses consisted of barrels or other obstacles for horses to navigate around. Shortly after the Division issued an annual license to Gretna Racing, another quarter horse permitholder, Hamilton Downs Horsetrack, LLC ("Hamilton Downs"), filed an application with the Division requesting a license to conduct barrel racing as a pari-mutuel wagering event in substantially the same fashion as Gretna Racing. Hamilton Downs received a license, number 547, for the 2012/2013 racing season, authorizing the conduct of pari-mutuel operations on BMR performances. On March 15, 2012, the Division renewed Gretna Racing's license no. 542 for the 2012/2013 season, authorizing 38 total performances of BMR at the Gadsden County facility. As a result of the Division's issuance of a license to Gretna Racing, according to Mr. Dillmore, if any quarter horse permitholder "submits an application and says that they're going to conduct quarter horse racing in compliance with [section 550.334(5), which allows other breeds to be used as substitutes for quarter horses provided the licensee is] using 50 percent registered quarter horses in their races[,] and meets the other regulations, [and] they have the detention barn, and the other people are licensed," then the Division will issue the permitholder a license authorizing pari-mutuel wagering on barrel races "as long as they [are] using quarter horses."15 In other words, the Division's decision in October 2011 that pari- mutuel barrel racing is permissible under a quarter horse permit will be relied upon by the Division in processing future requests by quarter horse permitholders to conduct pari-mutuel wagering on barrel racing, as the grant of a license to Hamilton Downs for that purpose demonstrates. The Division's approval of pari-mutuel barrel match racing reflects and implements a statement of agency policy interpreting the Act so as to legalize gambling on barrel racing as a type of pari-mutuel pool recognized under the statutory authorization for quarter horse racing. This new policy, which has not been promulgated as a rule, is a statement of general applicability because it announces an inclusive interpretation of the term "horse race" that will serve as the basis for other quarter horse permitholders to engage in this new form of pari- mutuel activity in lieu of traditional horseracing.
