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.
The Issue The issue is whether the proposed amendment to Florida Administrative Code Rule 61D-3.001 is an invalid exercise of delegated legislative authority.
Findings Of Fact The Division is the agency responsible for enacting administrative rules within the scope of its delegated legislative authority as set forth in chapter 550, Florida Statutes, as the statutes contained therein are amended from time to time. Petitioner, FHBPA, is a Florida not-for-profit corporation whose purposes, as set forth in its Amended and Restated Articles of Incorporation filed with the Secretary of State on December 5, 2005, include, but are not limited to, the following: A. to advance, foster, and promote, generally, the sport of thoroughbred horse racing and the thoroughbred horse racing industry in the State of Florida; * * * D. to establish standards for racetrack conditions and equine care, safety, health, treatment, and well-being; * * * to foster professional integrity among horsemen and the horse racing industry and to develop a code of ethics governing the behavior of those persons engaged therein; * * * to cooperate with equine and humane organizations and public and private agencies, regulatory authorities, racing associations, racing commissions and other organizations located in Florida including, for example, the Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering (the “Division”), and its departments and sub-divisions. and the public, in formulating fair and appropriate laws, rules, regulations and conditions that affect in any manner pari-mutuel wagering and awards, and are deemed to be in the best interests of horsemen, their employees, backstretch personnel, and the horse racing industry in general, and to ensure the enforcement of such rules is fair and equitable; * * * J. to represent the interests of its members, before any local, state, or federal administrative, legislative, and judicial fora including, but not limited to, the Division with regard to all matters affecting horsemen and the horse racing industry. Currently, the FHBPA represents more than 200 Florida licensed thoroughbred horse trainers and more than 5,000 Florida licensed thoroughbred horse owners. Pursuant to its Amended and Restated Articles of Incorporation and applicable law, the FHBPA has associational standing to file and prosecute this petition challenging the proposed amendment to rule 61D-3.001 on behalf of its members. Petitioner, Gulfstream Park, is the holder of a pari-mutuel permit issued by the Division authorizing thoroughbred horse racing at its permitted facility in Broward County. It is directly and substantially affected by the proposed amendment to rule 61D-3.001. Current rule 61D-3.001(2) provides that alleged violations of chapter 550 or chapter 61D in horseracing “shall be heard by a board of stewards. Each horseracing permitholder shall establish a board of three stewards, at least one of whom shall be the state/division steward selected and hired by the division.” Current rule 61D-3.001(19) provides, in relevant part: (19) Orders. In the event the stewards … determine a statute or rule has been violated and a penalty of a license suspension of 60 days or less, or a fine not to exceed $1,000 is sufficient to address the violation, the stewards or division judge shall enter an order within 14 days after the hearing. The order shall include a caption, time and place of the hearing, findings of fact, statement of rules or statutes violated, and a ruling stating the length of any suspension and the amount of the fine imposed for each violation. In the event the stewards … determine a statute or rule has been violated and a penalty of a license suspension of greater than 60 days, or a fine of greater than $1,000 should be imposed for the violation, the stewards or division judge shall forward a recommendation to the division stating their findings of fact, statement of statutes or rules violated, and recommended penalty within 14 days after the hearing. The recommendation shall be served to each party at the time it is forwarded to the division. A party shall have 14 days from the date the recommendation is issued in which to file a response with the division prior to the entry of a final order. Subsection (19) of the current rule plainly contemplates that the stewards may make factual findings sufficient to permit them to “determine a statute or rule has been violated.” The language of subsection (19) has been in place since June 26, 2011. Section 120.80 is titled “Exceptions and special requirements; agencies.” The statute sets forth various exceptions to the requirements of chapter 120 for specific agencies in specific situations. Section 120.80(4) sets forth the exceptions and special requirements for the Department of Business and Professional Regulation. Section 120.80(4)(a) is the provision cited by the Division as one of the statutes implemented by both the current rule and the proposed amendment to rule 61D-3.001. Section 120.80(4)(a) provides: (a) Business regulation.—The Division of Pari- mutuel Wagering is exempt from the hearing and notice requirements of ss. 120.569 and 120.57(1)(a), but only for stewards, judges, and boards of judges when the hearing is to be held for the purpose of the imposition of fines or suspensions as provided by rules of the Division of Pari-mutuel Wagering, but not for revocations, and only upon violations of subparagraphs 1.-6. The Division of Pari-mutuel Wagering shall adopt rules establishing alternative procedures, including a hearing upon reasonable notice, for the following violations: Horse riding, harness riding, greyhound interference, and jai alai game actions in violation of chapter 550. Application and usage of drugs and medication to horses, greyhounds, and jai alai players in violation of chapter 550. Maintaining or possessing any device which could be used for the injection or other infusion of a prohibited drug to horses, greyhounds, and jai alai players in violation of chapter 550. Suspensions under reciprocity agreements between the Division of Pari-mutuel Wagering and regulatory agencies of other states. Assault or other crimes of violence on premises licensed for pari-mutuel wagering. Prearranging the outcome of any race or game. Section 120.569 is titled “Decisions which affect substantial interests.” Subsection (1) provides as follows: The provisions of this section apply in all proceedings in which the substantial interests of a party are determined by an agency, unless the parties are proceeding under s. 120.573 [mediation of disputes] or s. 120.574 [summary hearings]. Unless waived by all parties, s. 120.57(1) applies whenever the proceeding involves a disputed issue of material fact. Unless otherwise agreed, s. 120.57(2) applies in all other cases. If a disputed issue of material fact arises during a proceeding under s. 120.57(2), then, unless waived by all parties, the proceeding under s. 120.57(2) shall be terminated and a proceeding under s. 120.57(1) shall be conducted. Parties shall be notified of any order, including a final order. Unless waived, a copy of the order shall be delivered or mailed to each party or the party’s attorney of record at the address of record. Each notice shall inform the recipient of any administrative hearing or judicial review that is available under this section, s. 120.57, or s. 120.68; shall indicate the procedure which must be followed to obtain the hearing or judicial review; and shall state the time limits which apply. (emphasis added). Section 120.57 is titled “Additional procedures for particular cases.” Section 120.57(1) sets forth “additional procedures applicable to hearings involving disputed issues of material fact” and section 120.57(2) sets forth “additional procedures applicable to hearings not involving disputed issues of material fact.” Subsection (1)(a) provides: (a) Except as provided in ss. 120.80 and 120.81, an administrative law judge assigned by the division shall conduct all hearings under this subsection, except for hearings before agency heads or a member thereof. If the administrative law judge assigned to a hearing becomes unavailable, the division shall assign another administrative law judge who shall use any existing record and receive any additional evidence or argument, if any, which the new administrative law judge finds necessary. In the absence of an exception in section 120.80 or 120.81, a case involving a disputed issue of material fact must be heard by an ALJ or an agency head or member thereof. Section 120.57(2) gives agencies greater discretion in hearings not involving disputed issues of material fact to agency discretion: ADDITIONAL PROCEDURES APPLICABLE TO HEARINGS NOT INVOLVING DISPUTED ISSUES OF MATERIAL FACT.— In any case to which subsection (1) does not apply: The agency shall: Give reasonable notice to affected persons of the action of the agency, whether proposed or already taken, or of its decision to refuse action, together with a summary of the factual, legal, and policy grounds therefor. Give parties or their counsel the option, at a convenient time and place, to present to the agency or hearing officer written or oral evidence in opposition to the action of the agency or to its refusal to act, or a written statement challenging the grounds upon which the agency has chosen to justify its action or inaction. If the objections of the parties are overruled, provide a written explanation within 7 days. An agency may not base agency action that determines the substantial interests of a party on an unadopted rule or a rule that is an invalid exercise of delegated legislative authority. The record shall only consist of: The notice and summary of grounds. Evidence received. All written statements submitted. Any decision overruling objections. All matters placed on the record after an ex parte communication. The official transcript. Any decision, opinion, order, or report by the presiding officer. Section 120.80(4)(a) exempts the Division from the hearing and notice requirements of sections 120.569 and 120.57(1) for hearings before stewards “when the hearing is to be held for the purpose of the imposition of fines or suspensions” for violations of subparagraphs 1.-6. Section 120.80(4)(a) does not exempt the Division from the hearing and notice requirements of sections 120.569 and 120.57(1)(a) for license revocations. The statute requires the Division to adopt rules establishing “alterative procedures” for the stewards’ hearings under subparagraphs 1.-6. It is notable that section 120.80(4)(a) does not under any circumstance exempt the Division from section 120.57(1)(b)-(n), which provides the procedural due process rights of parties to administrative hearings involving disputed issues of material fact. The narrow exemption provided by section 120.80(4)(a) allows the Division to retain jurisdiction over cases involving disputed issues of material fact rather than refer them to DOAH or have them heard by the agency head or a member thereof as would otherwise be required by sections 120.569(1) and 120.57(1)(a). Stewards may hold formal hearings that carry the penalty of fines or suspensions for the violations listed in section 120.80(4)(a)1.-6., but must respect the procedural rights established by section 120.57(1)(b)-(n). Nothing about the interplay of sections 120.57 and 120.80 suggests that stewards lack the authority to resolve disputed issues of material fact in the hearings subject to their jurisdiction. The Legislature’s exemption of the Division from only subsection (1)(a) of section 120.57 strongly suggests the opposite. The Division’s current rule 61D-3.001 clearly anticipates that stewards will resolve disputed issues of material fact in order to determine whether a statute or rule has been violated. The text of the proposed rule amendment indicates that the Division has revised its view of the statutory authority conferred by section 120.80(4)(a). The following are the most problematic portions of the proposed amendment: Hearings Conducted by a Board of Stewards: All proceedings for alleged violations indicated in subsection (1)(b) of this rule shall be heard by a Board of Stewards unless the division indicates in its administrative complaint that it is seeking revocation of a licensee’s pari-mutuel license or the Board of Stewards relinquishes jurisdiction as required by the Florida Administrative Code and/or Florida Statutes. Allegations of the following violations shall be heard by a Board of Stewards: Horse riding and harness riding actions in violation of Chapter 550, F.S. Application and usage of drugs and medication to horses in violation of Chapter 550, F.S. Maintaining or possessing any device which could be used for the injection or other infusion of a prohibited drug to horses in violation of Chapter 550, F.S. Suspensions under reciprocity agreements between the Division of Pari-Mutuel Wagering and regulatory agencies of other states involving horse racing. Assault or other crimes of violence on premises licensed for horse racing. Prearranging the outcome of any pari-mutuel horse racing event. * * * Procedures Applicable to Hearings by a Board of Stewards: * * * Conduct of Hearings Before a Board of Stewards The division shall have an opportunity to present to the Board of Stewards the undisputed facts of the alleged violation and any evidence of mitigation or aggravation for purposes of deciding a penalty. All parties shall have an opportunity to present evidence and witnesses regarding mitigation for purposes of deciding a penalty. All witnesses shall be sworn in by a member of the Board of Stewards and are subject to examination, cross-examination, and questioning by any member of the Board of Stewards. All parties shall have an opportunity to present legal arguments to the Board of Stewards, including interpretation of applicable division rules and statutes. * * * (4) Disputes of Material Fact: The Board of Stewards does not have jurisdiction to hear cases involving genuine issues of material fact. For purposes of this rule, a material fact is a fact that is essential to the determination of whether the respondent committed the alleged violation. Once a disputed issue of material fact is presented, the Board of Stewards must relinquish jurisdiction over the proceeding back to the division to be governed by Section 120.57(1), F.S., and referred to the Division of Administrative Hearings. The Division’s rationale for the proposed amendment is that section 120.80(4)(a) only allows stewards to impose fines or suspensions upon licensees, not to make factual determinations as to the underlying violations. The Division argues that if a matter requires anything more than a decision over the imposition of a fine or suspension when the violation is undisputed, then the exemption in section 120.80(4)(a) is no longer operative and the hearing and notice requirements of sections 120.569 and 120.57(1)(a) apply to force the stewards to refer the case to DOAH. The Division concludes that the proposed amendment does not limit the stewards’ jurisdiction but merely restates the limitations imposed by section 120.80(4)(a). The undersigned finds that the Division’s reading of the statute, while colorable if one considers the language of section 120.80(4)(a) narrowly and in isolation from the other provisions it cites, is fundamentally backward. As noted above, the only portion of section 120.57 that the Division is ever exempted from is subsection (1)(a). Thus, under section 120.80(4)(a), when the stewards go forward with their hearings to impose fines or suspensions, they remain subject to the provisions of section 120.57(1)(b)-(n). These provisions contain repeated specific references to the disputed issues of material fact that the Division argues stewards lack the jurisdiction to decide. For example: Section 120.57(1)(b) states that parties must be provided the opportunity “to submit proposed findings of facts and orders.” There would be no need to submit proposed findings of fact in the stewards’ hearings contemplated by the Division. Section 120.57(1)(c) sets forth the limitation on the use of hearsay in a section 120.57(1) hearing, a provision that would not be necessary in a proceeding with no disputed facts. Section 120.57(1)(d) provides, in relevant part, “Notwithstanding s. 120.569(2)(g), similar fact evidence of other violations, wrongs, or acts is admissible when relevant to prove a material fact in issue, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, but it is inadmissible when the evidence is relevant solely to prove bad character or propensity.” (Emphasis added.) Again, this provision would not be necessary for a stewards’ hearing as contemplated by the Division, yet is fully applicable to the stewards’ hearings under section 120.80(4)(a). Section 120.57(1)(j) provides that “Findings of fact shall be based upon a preponderance of the evidence, except in penal or licensure disciplinary proceedings or except as otherwise provided by statute, and shall be based exclusively on the evidence of record and on matters officially recognized.” The jurisdictional authority of stewards is established by section 550.1155, the full text of which is as follows: 550.1155 Authority of stewards, judges, panel of judges, or player’s manager to impose penalties against occupational licensees; disposition of funds collected.— The stewards at a horse racetrack; the judges at a dog track[3]; or the judges, a panel of judges, or a player’s manager at a jai alai fronton may impose a civil penalty against any occupational licensee for violation of the pari-mutuel laws or any rule adopted by the division. The penalty may not exceed $1,000 for each count or separate offense or exceed 60 days of suspension for each count or separate offense. All penalties imposed and collected pursuant to this section at each horse or dog racetrack or jai alai fronton shall be deposited into a board of relief fund established by the pari-mutuel permitholder. Each association shall name a board of relief composed of three of its officers, with the general manager of the permitholder being the ex officio treasurer of such board. Moneys deposited into the 3 References to dog racing in this section have been eliminated by section 13, CS/SB 8A, approved by the Governor on May 25, 2021. As of the writing of this Final Order, the bill has not been codified. Therefore, the statute has been quoted in its 2020 form. board of relief fund shall be disbursed by the board for the specific purpose of aiding occupational licenseholders and their immediate family members at each pari-mutuel facility. When section 550.1155 is read in conjunction with section 120.80(4)(a), it is clear that the Legislature contemplated racetrack stewards having full authority to hear cases and impose the limited discipline of fines and suspensions against occupational licensees for violation of the pari-mutuel laws or Division rules, including cases involving disputed issues of material fact. Section 120.80(4)(a) does not extend that authority to cases seeking license revocation, which is consistent with the provisions of section 550.1155. The proposed amendment to rule 61D-3.001 provides that stewards may conduct only hearings not involving disputed issues of material fact. The board of stewards’ jurisdiction is expressly limited to hearings in cases with “undisputed facts” as to the violation. Evidence may be presented only as regards to mitigation or aggravation of the penalty for the violation. The proposed amendment requires the board of stewards to relinquish jurisdiction of the case to DOAH whenever a disputed issue of material fact arises, meaning that it strictly follows section 120.57(1)(a) in the face of the express exemption from that provision set forth in section 120.80(4). The authority of an agency to conduct hearings not involving disputed issues of material fact without resort to DOAH is codified in sections 120.569(1) and 120.57. The proposed amendment purports to implement section 120.80(4), but in fact ignores the exemption provided therein. In this, the proposed rule clearly contravenes the provisions of the statute it purports to implement. The Division’s reasoning, while erroneous, does not rise to the level of being arbitrary or capricious. The language of section 120.80(4)(a), restricting the exemption to hearings “held for the purpose of the imposition of fines or suspensions,” standing alone, could reasonably lead to the conclusion reached by the Division that the stewards’ hearings should be limited to instances in which the facts of the violation are undisputed and the only question is the level of discipline to be imposed. It is when section 120.80(4)(a) is placed in the context of sections 120.569(1), 120.57(1)(a), and 550.1155 that the Division’s error becomes apparent. The Division should have made the observation that sections 120.569(1) and 120.57(1)(a) require the agency to send disputed fact hearings to DOAH, and that section 120.80(4) provides an exemption from that requirement. The Division then should have asked, “If the stewards are already precluded from hearing cases involving disputed issues of material fact by section 120.569(1), then what does the exemption in section 120.80(4)(a) do?” It being impermissible for an executive branch agency to read a statute as mere surplusage, the exemption must mean that certain defined disputed fact hearings may be conducted by the agency without the need to refer the matter to DOAH.4 4 This reading is supported by the fact that section 120.80 exempts several other entities from section 120.57(1)(a): section 120.80(2)(b) exempts the Department of Agriculture and Consumer Services from section 120.57(1)(a) for hearings held pursuant to the Florida Citrus Code, chapter 601, Florida Statutes; section 120.80(7) exempts the Department of Children and Families from section 120.57(1)(a) for certain social and economic programs; section 120.80(8)(a) exempts the Department of Highway Safety and Motor Vehicles from section 120.57(1)(a) for hearings regarding driver licensing pursuant to chapter 322, Florida Statutes, and section 120.80(8)(b) exempts the same agency from section 120.57(1)(a) for hearings to deny, suspend, or remove a wrecker operator from participating in the wrecker rotation system established by section 321.051, Florida Statutes; section 120.80(10)(c) exempts the Department of Economic Opportunity from section 120.57(1)(a) for hearings held under the Reemployment Assistance Program law, chapter 443, Florida Statutes; section 120.80(12) generally exempts the Public Employees Relations Commission from section 120.57(1)(a); and section 120.80(15) provides that the Department of Health is exempt from section 120.57(1)(a) for hearings conducted “in execution of the Special Supplemental Nutrition Program for Women, Infants, and Children; Child Care Food Program; Children’s Medical Services Program; the Brain and Spinal Cord Injury Program; and the exemption from disqualification reviews for certified nurse assistants program.” The language of these exemptions is not uniform. In most instances, the statute states that the agency may conduct the hearings in-house “notwithstanding s. 120.57(1)(a).” In some instances, the language appears to give the agency the option of sending the case to DOAH or keeping it in-house. In none of the exemptions is there any indication that the hearing to be conducted by the agency may not resolve disputed issues of material fact. As explained above, the Division’s reasoning went in another direction. The undersigned finds the Division’s reasoning wrong but not irrational, or completely lacking in logic, and therefore not arbitrary or capricious. In light of the findings above, it is unnecessary to make extensive findings as to Petitioners’ other main contention, i.e., that the proposed amendment too closely mirrors DOAH procedures to be considered an “alternative procedure” under section 120.80(4)(a). The undersigned is persuaded that the Division had the better argument on this point. The statute does not define “alternative procedures.” The “alternative procedures” the Division adopts in its rule would still have to be consistent with administrative due process and thus would be expected to bear at least some passing similarity to the procedures of the Administrative Procedure Act. How similar the alternatives may become before they cease to be “alternative” under the statute is a question for another day.
The Issue Whether Petitioners are entitled to exceed the twenty percent cap on simulcasts.
Findings Of Fact The Department is the state agency charged with the responsibility of regulating pari-mutuel facilities within the State of Florida. The Department also regulates, pursuant to Chapter 550, Florida Statutes, simulcast broadcasts of pari-mutuel events which are imported into the state at pari-mutuel facilities located within Florida. Such broadcasts are permissible and are subject to statutory taxes depending on the type of event and the applicable percentages of tax on the wagers received. Such amounts may vary depending on facility and type of event. Thoroughbred racing permit holders may simulcast thoroughbred races conducted at out-of-state thoroughbred tracks. Similarly, a harness racing facility may simulcast harness races conducted at out-of-state harness tracks. Theoretically, greyhound clubs may simulcast greyhound races conducted out-of- state and jai alai may simulcast jai alai matches from out-of-state. In each instance, the Florida pari-mutuel permit holder may send the simulcast signal to any pari-mutuel permit holder within the state. Historically, the number of the races which could be imported from out- of-state to be broadcast at a Florida permit holder location was capped at twenty percent. A permit holder could exceed this limitation with approval from the Department when it was in the best interests of racing and would promote live racing and purse distribution. Petitioner, Calder Race Course, Inc. (Calder), is a thoroughbred racing pari-mutuel permit holder fully authorized by the Department to conduct live races during its racing meet. Its racing facility is located in Miami, Florida. In June, 1995, Calder first requested permission to conduct full card simulcasting pursuant to Section 550.3551(6), Florida Statutes. That request, covering racing dates remaining for the 1995-1996 racing season, was denied. Moreover, Calder's request for an administrative hearing to challenge the denial was also denied. Calder's successful appeal to the district court of appeal ultimately resulted in this matter, DOAH case no. 95-6180, being referred to the Division of Administrative Hearings for formal proceedings. In December, 1995, Calder again filed an application to exceed the twenty percent full card simulcast limitation for its 1996-1997 racing season. Again, the Department denied the request. Having the benefit of the appellate decision, the Department referred the matter, DOAH case no. 96-1348, to the Division of Administrative Hearings for formal proceedings. Petitioner, Tampa Bay Downs, Inc. (TBD), is a thoroughbred racing pari-mutuel permit holder fully authorized to conduct live races during its racing season. Its racing facility is located in Oldsmar, Florida. In September, 1995 and January, 1996, TBD applied for full card simulcasting for its racing meet. Consistent with its response to Calder's request, the Department denied the TBD applications and referred the matter to the Division of Administrative Hearings for formal proceedings, DOAH case nos. 96-0025 and 96-1351. Petitioner, Tropical Park, Inc. (Tropical), is a thoroughbred racing pari-mutuel permit holder that is fully authorized to conduct live races during its racing season. It shares the Calder facility in Miami but has a different racing meet. Like Calder, Tropical filed for full card simulcasting for its 1996- 1997 racing meet and was denied by the Department. Its petition for formal proceedings has been designated DOAH case no. 96-1349. Petitioner, Gulfstream Park Racing Association, Inc. (Gulfstream) is a thoroughbred racing pari-mutuel permit holder fully authorized to conduct live races during its racing season. Gulfstream is located in Hallandale, Florida. On or about January 3, 1996, Gulfstream filed an application with the Department for authorization to exceed the twenty percent limitation on simulcasts. This application was for the 1996-1997 racing season with a race meet running from January 3, 1997 through March 16, 1997. The Department denied Gulfstream's application. Such denial, DOAH case no. 96-1350, was timely opposed by Gulfstream. Petitioner, PPI, Inc., d/b/a Pompano Park Racing (Pompano), is a harness racing pari-mutuel permit holder that is fully authorized to conduct live harness races during its racing season. Pompano is located in Pompano Beach, Florida. On or about December 20, 1995, Pompano filed an application with the Department for authorization to exceed the twenty percent limitation on simulcasts. This application was for Pompano's 1996-1997 racing season. The Department denied Pompano's application. Such denial, DOAH case no. 96-1392, was timely opposed by Pompano. Petitioner, the Florida Thoroughbred Breeders' Association, d/b/a the Florida Thoroughbred Breeders' and Owners' Association (Breeders), is a nonprofit corporation with its principal place of business located in Ocala, Florida. This Petitioner represents Florida owners and breeders of thoroughbred race horses. The Breeders maintain that denying simulcasting in excess of the twenty percent limitation adversely impacts the amounts which must be paid as the breeder's percentage of the wagers made at pari-mutuel facilities. Thus, Florida breeders lose income which simulcasting in excess of the cap would contribute to breeders' awards. The Intervenors are greyhound pari-mutuel permit holders who opposed full card simulcasting in excess of the statutory twenty percent limitation. Such Intervenors did not oppose the importation of the broadcast signals to a specific pari-mutuel location, but opposed its unbridled rebroadcast to pari- mutuel facilities within the state as allowed by law. Before the hearing in this cause was completed and on the last day of the 1996 regular session, the Legislature enacted CS/HB 337. Such bill became law without the Governor's signature and went into effect on July 1, 1996. The new law made numerous amendments to Chapter 550, Florida Statutes. Among the changes was the removal of the twenty percent limitation on simulcast wagering for pari-mutuel permit holders. On May 16, 1996, the Department issued a letter to all pari-mutuel wagering permit holders that provided, in pertinent part: In light of this omnibus legislation which addressed the concerns of the entire pari- mutuel industry including the issues surrounding full-card simulcasting, the Division of Pari-Mutuel Wagering (Division) believes it is in the best interest of Florida racing to immediately allow full- card simulcast wagering until June 30, 1996 pursuant to the Division's discretion set forth in subsection six of Section 550.3551, Florida Statutes. Accordingly, any pari-mutuel wagering permitholder whose annual license currently authorizes them to conduct live performances at any time during the period of May 17, 1996 through June 30, 1996 may receive broadcasts of like-kind events conducted at facilities outside this State at the race- track, dog track, or jai-alai enclosure of the licensee during any live performance authorized by the permitholder's annual license. On June 30, 1996 the privilege granted by this letter terminates; thereby, ending any authorization to exceed the twenty-percent limitation on simulcast wagering for all permitholders within the State. Full-card simulcast wagering authorized and regulated pursuant to the provisions in the Committee Substitute for House Bill 337 becomes effective on July 1, 1996. Thereafter, the Department filed a motion to dismiss Petitioners' requests for formal administrative hearing due to mootness. The Intervenors have supported the Department's motion to dismiss. The Petitioners, with the exception of Gulfstream which wanted the hearing and the administrative process to be completed, filed a motion to abate so that the 1996-1997 racing season may be completed before a determination is made as to the mootness of the issue.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That the Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering, enter a final order approving all full card simulcasting applications for which days remain in the Petitioner's racing meet. All other applications are deemed moot as the racing meets have expired. DONE AND ENTERED this 30th day of October, 1996, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 30th day of October 1996. COPIES FURNISHED: Alexander H. Twedt, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Harry R. Detwiler, Jr., Esquire John M. Alford, Esquire ALFORD & DETWILER 1106-6 A Thomasville Road Tallahassee, Florida 32303 Wilbur E. Brewton, Esquire Lee M. Killinger, Esquire Gray, Harris & Robinson, P.A. 225 South Adams Street, Suite 250 Tallahassee, Florida 32301 (Attorneys for Calder Race Course, Inc. and Tropical Park, Inc.) Howell L. Ferguson, Esquire Cindy L. Bartin, Esquire LANDERS & PARSONS Post Office Box 271 Tallahassee, Florida 32302 (Attorneys for Tampa Bay Downs, Inc.) Gary R. Rutledge, Esquire Harold F.X. Purnell, Esquire Rutledge, Ecenia, Underwood, Purnell & Hoffman, P.A. Post Office Box 551 Tallahassee, Florida 32302 (Attorneys for the Intervenors) David S. Romanik, Esquire ROMANIK, LAVIN, HUSS & PAOLI 1901 Harrison Street Hollywood, Florida 33020 (Attorneys for Gulfstream Park Racing Association, Inc.) Warren H. Husband, Esquire Messer, Caparello, Madsen, Goldman & Metz, P.A. Post Office Box 1876 Tallahassee, Florida 32302-1876 (Attorneys for Florida Thoroughbred Breeders' Association) Alan B. Koslow, Esquire David H. Reimer, Esquire BECKER & POLIAKOFF, P.A. Post Office Box 9057 Fort Lauderdale, Florida 33310-9057 (Attorneys for PPI, Inc.) Lynda L. Goodgame General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Royal H. Logan Acting Director Pari-Mutuel Wagering Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact On or about November 9, 1983, the Respondents submitted applications to petitioner for the issuance of thoroughbred horse owner's licenses. On the application, Kourkoumelis represented that he owned 100 percent interest in Rozen, Inc., and further represented that Rozen, Inc., owned four thoroughbred race horses, including the horse "Hexgreave Star." The applications were processed by Petitioner, and Kourkoumelis was issued license Number 0171691, and Rozen, Inc., was issued license Number 0231210. The foal papers on Hexgreave Star, which are the official ownership papers of the horse, reflect that the horse was acquired by Rozen, Inc., from Cynthia Elliott on August 7, 1983. That date reflects the last transfer of the horse listed on the foal papers, up to and including the date of the hearing. Hexgreave Star was foaled in England and shipped to the United States sometime around November of 1982. A statement from the International Horse Services reveals that K. Richardson of Jubilee Farms was billed for the shipping expenses. However, there is no competent credible evidence of record to establish the identity of the true owner of Hexgreave Star at the time he was shipped from England. The horse was subsequently vaned from its port of entry in New York to Hialeah Race Track in the care of trainer Robert Elliott, the husband of Cynthia Elliott. On November 10, 1982, the Jockey Club issued foal papers to Robert Elliott, registering him as the first owner of the horse in the United States. Elliott was the owner of record of Hextreave Star until February 7, 1983, when ownership of the horse was transferred to his wife, Cynthia Elliott, for "$1.00 and other consideration." From that date forward, until August 7, 1983, Cynthia Elliott was the listed owner of Hexgreave Star. Financial support for Hexgreave Star was initially provided by a wire transfer into the Elliotts' joint bank account in the amount of $2,000 on or about November 22, 1982. This money was wired from an account in Liechtenstein maintained in the name of an organization known as "Fallig Finanz." There is no evidence of record in this cause to connect the operation of Fallig Finanz with either Kenneth Richardson, Kourkoumelis, or the Elliotts. A second $2,000 was wired into the Elliotts' account from Fallig Finanz at the end of the month of November, 1982. Part of this money was used to open a trainer's account for Hexgreave Star in Robert Elliott's name. Checks from that account were used to pay for the care of Hextreave Star in December, 1952, and January, 1953. During the months of November and December of 1982 and January of 1983, Hexgreave Star raced in Florida under Robert Elliott's name. The ownership of the horse was transferred to Cynthia Elliott on February 7, 1983, in anticipation of Robert Elliott's return to England. No money was exchanged between Mr. and Mrs. Elliott at the time of the transfer. After the transfer of the horse's ownership from Mr. Elliott to Mrs. Elliott, Kenneth Richardson and Cynthia Elliott opened a joint checking account at the Southeast Bank. Richardson initially deposited $2,000 into that account which was used for the upkeep and maintenance of Hexgreave Star. The account was generally used as a horseman's account from March until June, 1983. On April 1, 1983, an additional $2,000 was wired into the account from Liechtenstein. After February 7, 1983, Hexgreave Star raced under Cynthia Elliott's name in Florida; at Monmouth Park, New Jersey; Penn National Race Track in Pennsylvania; and Belmont Park in New York. The racing accounts of Hexgreave Star reflect that the horse earned in excess of $47,000 in purses during that time. Approximately $30,000 of that money was paid to Kenneth Richardson by Mrs. Elliott in two separate payments on July 28 and August 4, 1983. Cynthia Elliott met Peter Kourkoumelis through her husband, Robert Elliott, on January 31, 1982. Mrs. Elliott saw Kourkoumelis with Kenneth Richardson on two occasions at Gulfstream Park in 1983. Throughout the time that Cynthia Elliott was racing Hexgreave Star under her own name, she was frequently in contact with Kenneth Richardson. During the summer of 1983, beginning with the Hialeah meeting, questions regarding the identity and ownership of Hexgreave Star were raised with Cynthia Elliott by the Thoroughbred Racing Protective Bureau (TRPB) and the Jockey Club. Beginning in June of 1983, Mrs. Elliott notified Richardson of these inquiries, and continued to keep Richardson apprised as the TRPB continued its investigation. In the last week of July, 1983, Cynthia Elliott met with Kenneth Richardson, his son Andrew, and Peter Kourkoumelis at the Floral Park Motel in Belmont, New York, to discuss the fortunes of Hexgreave Star. In a subsequent meeting, Mrs. Elliott presented Kenneth Richardson with a list of expenses and deductions, and the remaining funds from the horse's winnings. Rozen, Inc., was incorporated in Florida on August 1983. Kourkoumelis was listed as the corporation's sole director and officer. On August 3, 1983, Cynthia Elliott signed a bill of sale purporting to transfer her interest in Hexgreave Star to Rozen, Inc. Also on August 3, 1983, an agreement was entered into between Cynthia Elliott and Rozen, Inc., for the care and training of Hexgreave Star. Present at the signing of the agreement were Cynthia Elliott; Peter Kourkoumelis, who signed the agreement as president of Rozen, Inc.; and Kenneth Richardson and Andrew Richardson. By the terms of the agreement, Cynthia Elliott was authorized to train Hexgreave Star, but Rozen, Inc., was to make major managerial decisions concerning the horse. The agreement provided that the horse ". . . is the sole property of Rozen, Inc.", and that all prize money won by the horse was payable to Rozen, Inc., less 10 percent in fees, $30 per day training fees, and blacksmith and veterinarian bills. After the execution of the August 3, 1983, agreement, Cynthia Elliott continued to pay for the care and upkeep of Hexgreave Star from funds left in the track account. On August 9, 1983, Mrs. Elliott purchased an insurance policy on Hexgreave Star in the amount of $50,000. The horse was insured in the name of Rozen, Inc., and the premium of $3,612.50 was paid by Mrs. Elliott from funds left in the track account. Through the middle of September, 1983, Mrs. Elliott provided for the care and maintenance of Hexgreave Star through funds that were left in the track account. She itemized her expenses and showed them to Richardson on August 19, 1983, in England. By separate letters dated September 22, 1983, Cynthia Elliott notified Kenneth Richardson and Peter Kourkoumelis of her decision to resign her position with Rozen, Inc. There is no evidence of record to establish what, if any, transaction occurred concerning Hexgreave Star between September 22, 1983, and November 9, 1983, the date on which Kourkoumelis and Rozen, Inc., allegedly falsified their license applications. There is no direct evidence, or, indeed, any credible evidence at all, to establish that Kourkoumelis was aware of the manner in which Hexgreave Star had been handled between Kenneth Richardson, and Robert and Cynthia Elliot. Further, there is no competent credible evidence of record to establish either that anyone other than Peter Kourkoumelis and Rozen, Inc., owned Hexgreave Star on November 9, 1983.
The Issue Whether Petitioner, a licensed greyhound trainer, committed the offenses alleged in the Amended Administrative Complaint and, if so, the penalties that should be imposed.
Findings Of Fact Petitioner issued Respondent greyhound trainer's license number 156254-1021 on January 10, 2003. Respondent was the trainer of record for the following greyhounds that raced at Hollywood Greyhound Track at the times pertinent to this proceeding: "WP's Dylan," "LM's Ice Age," "Doinwhat Blair," "Okie Leona," "Tom's Rusty," "Hi Accord," "LM's Angel Eyes," and "Miss Challenger." Hollywood Greyhound Track is a facility authorized to conduct pari-mutuel wagering in Florida pursuant to a permit issued by Petitioner. "WP's Dylan" raced in the fourth race at Hollywood Greyhound Track on the afternoon of January 21, 2003. "WP's Dylan" finished fourth in that race. Following the race, urine sample number 908316 was collected from "WP's Dylan" and was processed at the Racing Laboratory. "LM's Ice Age" raced in the first race at Hollywood Greyhound Track on the evening of January 23, 2003. "LM's Ice Age" finished second in that race. Following the race, urine sample number 907673 was collected from "LM's Ice Age" and was processed at the Racing Laboratory. "Doinwhat Blair" raced in the third race at Hollywood Greyhound Track on the evening of January 23, 2003. "Doinwhat Blair" finished first in that race. Following the race, urine sample number 908327 was collected from "Doinwhat Blair" and was processed at the Racing Laboratory. "Okie Leona" raced in the ninth race at Hollywood Greyhound Track on the evening of January 23, 2003. "Okie Leona" finished first in that race. Following the race, urine sample number 908358 was collected from "Okie Leona" and was processed at the Racing Laboratory. "Tom's Rusty" raced in the fifth race at Hollywood Greyhound Track on the evening of January 25, 2003. "Tom's Rusty" finished first in that race. Following the race, urine sample number 908104 was collected from "Tom's Rusty" and was processed at the Racing Laboratory. "Hi Accord" raced at Hollywood Greyhound Track on January 25, 2003. Following the race, urine sample number 907704 was collected from "Hi Accord" and was processed at the Racing Laboratory. "LM's Angel Eyes" raced at Hollywood Greyhound Track on January 25, 2003. Following the race, urine sample number 907694 was collected from "LM's Angel Eyes" and was processed at the Racing Laboratory. "Miss Challenger" raced at Hollywood Greyhound Track on January 25, 2003. Following the race, urine sample number 907698 was collected from "WP's Dylan" and was processed at the Racing Laboratory. Petitioner proved that each urine sample involved in this proceeding was collected, maintained, and analyzed pursuant to established, routine procedures. Petitioner established by clear and convincing evidence that all eight urine samples involved in this proceeding tested positive for metabolites of cocaine (benzoylecgonine and/or ecgonine methyl ester). Cocaine is a topical anesthetic, and a Class 1 drug under the Uniform Classification Guidelines for Foreign Substances, as promulgated by the Association of Racing Commissioners, Inc. Cocaine is prohibited in racing animals in Florida. The presence of the metabolites of cocaine in the urine of the eight animals at issue in this proceeding established that the dogs had been administered cocaine prior to the respective races. Respondent testified that he did not administer cocaine to any of the animals involved in this proceeding. Respondent's denial was uncorroborated.
Recommendation Based on the foregoing findings of fact and conclusions of Law, it is RECOMMENDED that Petitioner enter a final order revoking Respondent's license and imposing an administrative fine against Respondent in the aggregate amount of $8,000. DONE AND ENTERED this 29th day of May, 2003, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 29th day of May, 2003. COPIES FURNISHED: Joseph M. Helton, Jr., Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-2202 Kenneth C. Purdy 15855 Miami Lakeway, North E 248 Hialeah, Florida 33014 David J. Roberts, Director Division of Pari-Mutuel Wagering Department of Business and Professional Regulation 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
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
The Issue The Petitioner has accused the Respondent, Frank Rudolph Solimena, with a violation of Rule 7E-1.06(11)(a), Florida Administrative Code, which reads: The running of a horse in a race with any narcotic, stimulant, depressant or local anesthetic is prohibited. If the stewards shall find that any narcotic, stimulant, depressant or local anesthetic has been administered or attempted to be administered, internally or externally, to a horse before a race, such stewards shall impose such punishment and take such other action as they may deem proper under any of the rules, including reference to the Division, against every person found by them to have administered, or to have attempted to administer, or to have caused to be administered, or to have caused an attempt to administer, or to have conspired with another person to administer, such narcotic, stimulant, depressant or local anesthetic. If the Division laboratory shall find a positive identification of such medication, such finding shall constitute prima facie evidence that such horse raced with the medication in its system. Under the accusation, the Respondent is made responsible pursuant to the provisions of Rule 7E-1.18(3), Florida Administrative Code, referred to herein as the absolute insurer's rule, which provides that: The trainer shall be responsible for, and be the insurer of the condition of the horses he enters. Trainers are presumed to know the rules of the Division. Specifically, Respondent Solimena is accused under facts that allege that on November 29, 1978 a horse trained by the Respondent was entered and ran in the sixth (6th) race at Tropical Park, Inc. (at Calder Race Couse). Subsequent to the race a urine specimen was taken from the horse and the specimen was analyzed by the Petitioner's laboratory. It is further alleged that the Division of Pari-Mutuel Wagering laboratory reported the results of the test and that the report showed that the urine sample contained Despropionyl Fentanyl, which is classified as a derivative of Fentanyl, a narcotic compound.
Findings Of Fact This cause comes on for consideration based upon a Notice to Show Cause (Administrative Complaint) filed by the Petitioner, State of Florida, Department of Business Regulation, Division of Pari-Mutuel Wagering, against Frank Rudolph Solimena. At all times pertinent to the Notice to Show Cause, Frank Rudolph Solimena was the holder of license Nos. K-00257 and 5-00863, issued by the Petitioner to the Respondent, Frank Rudolph Solimena, enabling Solimena to operate as horse trainer and horse owner, respectively, at the several race tracks located in the State of Florida. The Petitioner, State of Florida, Department of Business Regulation, Division of Pari-Mutuel Wagering, is an agency of the State of Florida charged with the duty of the regulation of, among other things, the matters pertaining to thoroughbred horse racing in the State of Florida. The authority for such regulation is found in Chapter 550, Florida Statutes, and those rules promulgated to enforce the provisions of that chapter. Within that body of rules, are Rules 7E-1.06(11)(a) and 7E-1.18(3), Florida Administrative Code, alluded to in the issues statement of this Recommended Order. Those rules as set out in the issues statement shall serve as a basis for determining the facts and reaching the legal conclusions necessary to formulate a decision in this matter and official recognition is taken of the aforementioned rules. The facts in this case show that the Respondent, Frank Rudolph Solimena, was acting as a horse trainer on December 4, 1978, at Tropical Park, Inc., in Florida. On that date, Carpe Diem, a horse trained by the Respondent, ran in the second race and finished in first position. Following the race, and on the same date, a urine specimen was taken from the horse, Carpe Diem. That urine specimen was subsequently analyzed through a series of tests and the test directed to the urine sample revealed a positive identification of a substance known as Dispropionyl Fentanyl, which is classified as a derivative of Fentanyl, a narcotic. The process which occurred in Carpe Diem after he received the Fentanyl, was that the Fentanyl was metabolized in the horse's system to become Dispropionyl Fentanyl, and that latter substance acted as a central nervous system stimulant in the horse during the course of the race. The narcotic, Fentanyl, carries the trade name, Sublimaze. The horse referred to above was under the care and treatment of Carl J. Meyer, D.V.M., on the date of the race in question. In addition to treating this horse that is the subject of this complaint, Dr. Meyer had treated other horses for which the Respondent was the trainer, beginning in 1976 and continuing through December, 1978. One of the conditions for which the disputed horse and other horses trained by the Respondent reportedly received treatment was a condition described by Dr. Meyer as Myopathy. 1/ This treatment form was administered to Carpe Diem on the date of the disputed race event. According to Dr. Meyer, Myopathy is a treatment for muscle soreness and is a type acupuncture in which needles are injected at pressure points over the sore muscles and authorized medications are injected into those muscle areas, to include ACTH, Stroids and Lasix. When the Respondent received one of the billing statements from Dr. Meyer which indicated that horses that were being trained by the Respondent had been treated for Myopathy, the Respondent inquired of Dr. Meyer what Myopathy treatments consisted of. Dr. Meyer at that point told the Respondent that you take a needle and put it in certain pressure points in the muscle to relieve bursitis and/or pressure. When questioned in the course of the hearing about further details of the treatment for Myopathy, Dr. Meyer was unable to give a satisfactory explanation of the origins of the treatment for Myopathy and literature related to that treatment which might have been published through research in veterinary medicine. Within the same time frame that Dr. Meyer claimed to be treating the subject horse for Myopathy, he had purchased the substance, Sublimaze, and by his testimony stated that this narcotic had been used on horses other than the one involved in this accusation. The use in the unrelated group of horses was as a pre-anesthetic agent and to treat colic conditions. He claimed to use 18 milligrams as a pre-anesthetic dose and as much as 25 milligrams over a period of time to control the colic condition. The utilization of Sublimaze as a pre-anesthetic agent and for treatment for colic was disputed in the course of the bearing by the testimony of Dr. George Maylin, D.V.M., who also has a Ph.D. in pharmacology. At the time Dr. Maylin gave his testimony, he was an associate professor of toxicology at the New York State College of Veterinary Medicine, Cornell University, Ithica, New York. Dr. Maylin has done extensive research on the effect of Sublimaze as a pre-anesthetic agent and concludes that it is not a predictable anesthetic agent, and that a 10 milligram dosage would not have a desired effect in the use of pre-anesthetic cases. In Dr. Maylin's opinion, 50 milligrams would be the indicated amount. In addition, Dr. Maylin's extensive testing of Sublimaze in a colic model situation pointed out the ineffectiveness of Sublimaze as an analgesic in those colic cases. Finally, Dr. Maylin does not believe that 25 milligrams of Sublimaze over an extended period of time could be effective in treating the colic condition. Other trainers had horses which had been treated by Dr. Meyer around the same time period as the horse of the Respondent, which is the subject of this hearing. Those trainers are Ohayneo Reyes and Edward E. Plesa. Both Reyes and Plesa questioned Dr. Meyer on the subject of Meyer injecting Sublimaze in their race horses. Those questions were asked following accusations placed against those trainers for violations similar to those in the current case of the Respondent. The answers given to Reyes and Plesa by Dr. Meyer indicated that he had in fact injected the horses with Sublimaze, but he told them not to worry because the substance could not be detected. Dr. Meyer also testified in the course of the hearing that he had placed wagers on some of the horses being treated for Myopathy. An analysis of the evidence leads to the factual conclusion that Dr. Meyer infused Carpe Diem, for which the Respondent stands accused through this Notice to Show Cause, with Sublimaze, otherwise identified as Fentanyl, and that he gave those injections under the guise of a treatment for Myopathy, when in fact the so-called treatment for Myopathy was a ruse to enable Dr. Meyer to administer the Sublimaze. This act by Dr. Meyer directed to the horse of the Respondent involved in this accusation, was unknown to the Respondent at the time the injection was administered and nothing that had transpired prior to this placed Respondent in the position of having reason to believe that Dr. Meyer was pursuing this course of conduct. In summary, although the horse in question ran in the subject race while under the effects of Fentanyl, metabolized to become Dispropionyl Fentanyl, it was not through an act of the Respondent.
Recommendation It is recommended that the action through the Notice to Show Cause against the Respondent, Frank Rudolph Solimena, be DISMISSED. DONE AND ENTERED this 10th day of September, 1979, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32381 (904) 488-9675
