The Issue Whether Rule 7E-1.02(43), Florida administrative Code, a rule of the Division of Pari-Mutuel Wagering, Department of Business Regulation, constitutes an invalid exercise of delegated legislative authority.
Findings Of Fact TROPICAL PARK holds a Winter Thoroughbred Horseracing permit issued pursuant to Sections 550.02, 550.04, 550.05 and 550.81, Florida Statutes, and operates a race course in Dade County, Florida. GULFSTREAM and Hialeah, Inc. ("Hialeah"), are the other holders of Winter Thoroughbred Horseracing permits within a 35-mile radius of TROPICAL. See, Section 550.081(1), Fla. Stat. (1983). GULFSTREAM operates a race course in Broward County; Hialeah operates one in Dade County. CALDER is the only holder of a Summer Thoroughbred Horseracing permit authorized by Sections 550.40 and 550.41, Florida Statutes. It owns and operates a racing facility in Dade County. TROPICAL, during its winter race meet, leases the CALDER facility. It has done so since 1972, when CALDER acquired TROPICAL and the two corporations, in light of Section 550.47, Florida Statutes, agreed to the lease arrangement. TROPICAL, GULFSTREAM and Hialeah, as the only three winter permit-holders, each operate one of the three winter racing seasons defined in Section 550.081, Florida Statutes, and are prohibited by law from operating their racing meets at the same time. Winter racing dates are allocated by the Florida Pari-Mutuel Commission under the provisions of Sections 20.16(4) and 550.081, Florida Statutes. Intervenor, FHBA, is a voluntary organization of over 1,500 owners and trainers of thoroughbred race horses. The majority of its members participate in year round racing in Florida. Many of its members stable their horses at CALDER and a majority of its members participate in the CALDER and TROPICAL racing meets. Respondent DIVISION, a state agency created by Section 20.16(2), is charged with exercising regulatory authority over Florida's pari-mutuel wagering industry. The Legislature has enacted strict controls over pari-mutuel wagering in general and horseracing in particular. See, Chapter 550, Fla. Stat. (1985). The Legislature established the DIVISION, invested it with broad powers necessary to regulate and supervise the industry, and directed it to: make rules and regulations for the control, supervision and direction of all applicants, permittees and licensees and for the holding, conducting and operating of all race tracks, race meets, and races held in this state; provided, such rules and regulations shall be uniform in their application and effect . . .. Section 550.02(3), Fla. Stat. (1983). Effective May 17, 1976, the DIVISION amended Rule 7E-1.02 by repealing the then existing 7E-1.02(43), and replacing it with "new" subparagraph (43), the rule which CALDER and TROPICAL now challenge. The "old" 7E-1.02(43), which had been in effect since the 1940s and, apparently, never challenged on legal grounds, read as follows: All horse tracks within a radius of fifty (50) miles of each other shall open their stables and racing strips by November 1 of each year and remain open until April 30 of the following year. 2/ "New" rule 7E-1.02(43) replaced this with the following: In the event of an emergency situation, after proper hearing before the Division of Pari- Mutuel Wagering, if it is determined to be in the best interest of thoroughbred racing in Florida that a track must close its stable and racing strip for a designated period of time, and the stabling facilities of the remaining tracks are sufficient to accommo- date those horsemen wishing to race at one of the other tracks meeting, and that no serious detriment to the meeting success is evident, permission may be granted for such closing by the Division of Pari-Mutuel Wagering and the conditions set for same. When the DIVISION repealed "old" Rule 7E-1.02(43) and adopted "new" Rule 7-1.02(43), it filed a summary and justification of the rule with the Department of State as required by Chapter 120, Florida Statutes. The summary states: This rule provides a method for a track to repair racing strip and insures adequate stabling and training facilities during repairs. The justification states: This rule change is to coordinate the closing of any racing stable to insure adequate stabl- ing of horses so that there would be no detri- mental effect on any other track. (Petitioners' Exhibit "E") When "old" Rule 7E-1.02(43) was amended in 1976 to its present form, the DIVISION proposed to adopt not only the rule as it now exists, but also the following language: All horse tracks within a radius of fifty (50) miles of each other shall open their stables and racing strips by October 1 of each year and remain open until ten (10) days beyond the closing date of the track opera- ting the last period of the winter racing season. The horse track running the first period of the winter racing season shall reimburse the track running the middle and last period for fifty (50) percent of the additional operating expenses caused solely by the opening of these tracks 30 days ear- lier than prior existing rule. The DIVISION, however--for reasons not explained in the record--did not adopt this provision. With the repeal "old" Rule 7E-1.02(43) and the DIVISION's failure to adopt, in connection with "new" Rule 7E-1.02(43), the proposed language (requiring that certain stables and racing strips be open during a specified time period without regard to the particular track's racing season) there was no longer a rule explicitly compelling any race track to open its racing strip and stables in advance of, or keep them open after the close of, its allotted racing season. In October 1976, the DIVISION, apparently mindful of this hiatus, proposed to adopt a rule requiring all thoroughbred race tracks (within 50-miles of each other) to open their stables and race strips by November 1, of each year and remain open until ten days beyond the closing date of the track operating the last period of the winter racing season. This proposal, similar to the provision inexplicably omitted when "new" Rule was adopted in April 1976, would have applied to TROPICAL, GULFSTREAM, and Hialeah--the three horse tracks within 50 miles of each other which conducted winter racing meets. On October 15, 1976, pursuant to a request filed by CALDER and TROPICAL, the Acting Director of the DIVISION conducted a public hearing on the proposed rule. During the hearing, counsel for CALDER and TROPICAL argued that the CALDER/TROPICAL facilities needed to close in order to make necessary repairs; that the DIVISION lacked legal authority to adopt a rule compelling a race track to open its facilities and stables prior to and after the close of its own racing season for the purpose of accommodating other race tracks in the area; and that decisions on such matters should be made by management based on business judgment and the spirit of mutual cooperation. He added: Every year, the same general factors come to being at subsequent times, so all we are saying is to let the management sit down and work out and present a plan back to you, so the state can be assured of their cooperation. I believe that under those circumstances, that you will be pleasantly surprised at the ability of the tracks to cooperate and come up with a reasonable compromise. (Petitioners' Exhibit D, p. 74) The corporate president of GULFSTREAM, urging adoption of the rule, responded: I want to respond just the opposite. I feel you should pass this proposed rule or what I understand it to be. I still think we need the rule. The only reason there is no rule now is there was a mistake made procedurally. That should not affect the fact it is a rule which is not on the books now. In my opinion it should be on the books now and should always be on the books. It is a mistake, but how you operate, I am not familiar with that. I hope we can compromise. I do not think the state should be left in the position with no rule at all and just on our talk here today that something is going to happen and you will assume that we will end up with a com- promise. It would not be beneficial to find in February or January that everybody is shutting down and opening up and trying to cut each other's throats. It could very well happen if this thing gets out of hand. (e.s.) (Petitioner's Exhibit D, pp. 74-75) Whether the DIVISION had legal authority to adopt the proposed rule, was the focus of some discussion at the public hearing. A day earlier, on October 14, 1976, Robert L. Shevin, then Attorney General of Florida, issued a formal four-page opinion that the DIVISION was without authority to adopt the proposed rule. Citing, Department of Business Regulation v. Vandervort, 273 So.2d 66 (Fla. 1973) and St. Petersburg Kennel Club v. Baldwin, 38 So.2d 436 (Fla. 1979), he found that the proposed rule would violate the statutory requirement of Section 550.02: that all rules of the DIVISION be uniform in application and effect: The horse racing season will commence with Tropical at Calder opening around November 13 to be succeeded by Gulfstream and Hialeah. Calder will commence its summer horseracing season on or about May 13 and close on or about November 10. The effect of the rule will have all three tracks open November 1 and remain open to on or about May 21. Calder would, of course, be the only track required to remain open the entire year. That track is effectively prevented from ever closing its facilities to even be able to rebuild or take other necessary steps to ensure the safety of the attending public. . . . (Petitioners' Exhibit G, p.4) He concluded the opinion with this summary: Absent subsequent judicial or legislative clarification, a rule proposed by the Divi- sion of Pari-mutuel Wagering to require all horse tracks within a 50 mile radius to open their stables and racing strips by November 1 and to remain open until ten days beyond the closing of the winter racing season, would appear to violate the necessary statutory authority requirements judicially expressed by the Florida courts. (Petitioners' Exhibit G, p. 4) The DIVISION employee, attending the hearing to give reasons for the proposed rule, did not understand why the DIVISION's legal authority for the rule was being questioned: I would like to ask Mr. Moore [counsel for the DIVISION] a question. I do not have legal background. I thought that all of our rules are in the book, and the rule here was previously in the book, about the opening and closing of the winter tracks. I do not have the rule number. We know what we are talking about. The rules come from Florida Statutes or law. That is where the rules come from. Where along the line did we lose our authority. The mere fact that we are trying to change a rule and what not does not mean that we do not have the authority. I do not understand where we lost our authority to make the rules. (Petitioners' Exhibit D, p. 77) The public hearing was adjourned, with the Division Director deferring his decision for ten days to give the parties an opportunity to present any additional information. There is no evidence that the DIVISION even took any further action on the proposed rule. No rule was adopted which expressly, as by necessary implication, reimposed the former requirement--in effect from the 1940s until the April 1976--which required race tracks to open their stables and racing strips in advance of their racing seasons, and keep them open beyond the close of their seasons. III. Since the 1976 repeal and adoption of "new" Rule 7E-1.02(43), the DIVISION has never applied the rule to any other race tracks in Florida other than CALDER and its winter season lessee, TROPICAL. No other race track, other than CALDER/TROPICAL has ever requested permission from the DIVISION to close its stables at any time. Nor has the DIVISION ever taken any action against any track--other than CALDER/TROPICAL--demanding that stables remain open or demanding that permission from the DIVISION be obtained before closing them. In January 1980, pursuant to Rule 7E-1.02(43), CALDER applied to the DIVISION--under protest--for permission to temporarily close its stables for necessary repairs during a specific period during the Winter Thoroughbred Horseracing season. The DIVISION, after hearing, granted permission. Because the CALDER facility is operated during a summer season (June to November 9) and TROPICAL's winter season (November 11 to January 7) and because Hialeah and GULFSTREAM operate their race meets during the period of time that the CALDER racing facility is not being used [January 8 to May 30] CALDER's is the only horse race track required--under the DIVISION's construction of Rule 7E- 1.02(43)--to keep its stables and race strip open, unless permission is granted to close in accordance with the conditions specified in the rule. No other horse race track in Florida, including GULFSTREAM and Hialeah, is required to keep its stables and racing strips open year round, absent permission to close being granted by the DIVISION. Both Hialeah and GDLFSTREAM open and close their stable areas in accordance with their business judgment. GULFSTREAM and Hialeah have never sought permission from the DIVISION to close their stable areas, nor has the DIVISION ever demanded that either keep their stables open year round, or during the period of time that both tracks are not conducting their individual racing meets. By notice dated July 29, 1985, Kenneth Noe, Jr., President of TROPICAL and CALDER, notified all horsemen stabled at the CALDER/TROPICAL facility that the barn area would close on Monday, January 13, 1986, for necessary improvements and repairs. He stated that the cost of keeping the stables open for the horsemen's benefit during the time that CALDER and TROPICAL were not operating race meets was getting "most prohibitive." This notice precipitated a letter dated August 2, 1985, from Richard Burroughs, Jr., Secretary and Head of the Department of Business Regulation, advising Mr. Noel, that CALDER could not close its facility at the conclusion of TROPICAL's winter race meet without first complying with the conditions of Rule 7E-1.02(43). (Petitioners' Exhibit K) Mr. Burroughs was unaware of the existence of Rule 7E-1.02(43) until after he learned of CALDER's intent to close its racing facility in January 1986, and sought advice from the DIVISION's legal counsel on the DIVISION's responsibilities. Mr. Burroughs is still not familiar with the rule, other than the fact that he has been advised by counsel that such a rule exists, and that it requires the CALDER stable area to remain open unless the DIVISION grants permission to close. It is his stated intention to enforce Rule 7E-1.02(43), or ask his legal staff to enforce the rule if he feels enforcement is "in the best interest of the State of Florida, the best interest of the thoroughbred racing industry in Florida, and the best interest to protect the State's revenue." (Petitioners' Exhibit K, p. 13) By letter dated August 23, 1985, addressed to Mr. Burroughs, CALDER specifically objected to the application of Rule 7E-1.02(43) to its facility for several reasons, including: If such rule is valid, it can only apply during a permit-holder's meet, as a [sic] jurisdiction of the Division over such permit- holders facilities extends to the conduct of its meet, and not beyond. If the rule is applied to extend beyond the permit-holder's meet, then such rule requires the use of Calder's private property for the benefit of the State, or some other private permit-holder without compensation to Calder, the same being in violation of the Florida Constitution. The rule since enactment in 1976, has never been applied to any permit-holder. The Division has never utilized or exercised any authority relating to the opening or closing of any permit-holder's stable area or racing facility. The rule in and of itself is vague, and the history of the enactment of the same, indicates clearly that the Division had re- cognized the lack of power to require stables to stay open for the period of the previous rule 7E-1.02(43). (Petitioners' Exhibit I) The ruled as construed by the DIVISION, requires a race track to keep its stable area open for the benefit of horsemen wishing to race at another race track, even though the race track whose stables are to remain open is not presently conducting its race meet. Under this construction, a horse race track must keep its stables open for the benefit of other race tracks, with no compensation from the affected race track. In the Division's view, such a requirement is necessary for the good of the pari-mutuel industry because a sufficient supply of stables is necessary to attract quality horses to Florida horse races. However, in practice and application, only CALDER is required to keep its stable area open year round, and it is the only race track in the state required to request permission to close its stables. 3/ The current Director of the DIVISION does not know what various provisions of Rule 7E-1.02(43) mean or were intended to mean, and is unable to construe the rule or apply it. He thinks, however, that it means that while either GULFSTREAM or Hialeah is operating, TROPICAL is obligated (to these winter thoroughbred permit-holders) to maintain its backside open; similarly Hialeah and GULFSTREAM are obligated to open while TROPICAL is operating. He is not sure, however, whether Hialeah and GULFSTREAM have ever complied with the rule. Neither Hialeah nor GULFSTREAM has ever requested permission to close their stables. There have been occasions, however, when Hialeah and GULFSTREAM may have opened or closed a little before the season, or opened a little bit later than the DIVISION though they should; when this occurred the DIVISION discussed the matter with them. However, no other DIVISION action was taken towards GULFSTREAM or Hialeah under the rule. The Division Director was aware that Hialeah opened its stables late in 1984, somewhere near the end of November, when only about 35 racing days were left in TROPICAL's race meet. (Testimony of Rosenberg) IV. The CALDER race facility has approximately 1,850 stables; GULFSTREAM and Hialeah each have approximately 1,300 stables. During both CALDER's and TROPICAL's race meet, all of the horses stabled at CALDER's stabling area, except for approximately 10 to 15 percent, actually run in a CALDER or TROPICAL race. In 1984-85, the horses stabled at Hialeah during its race meet, only 50 percent of the horses actually ran in a Hialeah race. Of the horses stabled in GULFSTREAM's barns during its meet, only 75 percent of the horses actually ran in a GULFSTREAM race. Almost 40 percent of the horses stabled at GULFSTREAM and Hialeah--1,016 horses out of 2,600--failed to run in a race at either. The DIVISION has never conducted a specific study as to the expense incurred by the race tracks in keeping their stables open during the period of time they are not operating, or when they are conducting a race meet. Nor has the DIVISION conducted a specific study on the number of stables needed by any affected race track to conduct a successful race meet. CALDER has a sufficient number of stables at its facility to operate its 120 day summer racing meet, or any one of the periods of winter racing. The cost of operating the stable area and racing strip at CALDER is approximately $8,000 per calendar day. (Horsemen are not charged for use of the stables at any of the affected race tracks.) If Hialeah and GULFSTREAM were to allocate their stable space to horses that would actually run during their race meets, both Hialeah and GULFSTREAM should have sufficient stable space. However, the management of GULFSTREAM feels that in order to attract the quality of horses necessary for a successful race meet, it must provide stable space to other horses which it knows will not run at its race meet. The decision on which horses will be allowed to stables will be assigned to horses which will not actually run a race, is made by management. 1984-85 "starter books" show that 1,016 horses stabled at Hialeah and GULFSTREAM during their meets did not run in a race at either. However, during GULFSTREAM's 1984-85 meet, 874 horses were stabled at CALDER but ran in a race at GULFSTREAM. Likewise, during Hialeah's 1984-85 race meet, approximately 418 horses were stabled at CALDER but ran in a race at Hialeah. Thus during the Hialeah and GULFSTREAM race meets, approximately 1,292 horses were stabled at CALDER, but started a race at either Hialeah or GULFSTREAM. Hialeah and GULFSTREAM, however, did not start a total of 1,016 horses stalled at their own facilities. Subtracting the 1,016 figure from the 1,292 figure leaves a total of 276 as the maximum number of stalls that might have been necessary to accommodate horse trainers intending to race at a horse race meet. However, if GULFSTREAM and Hialeah were to allocate their stall space only to horse trainers intending to run at their respective track facilities, both Hialeah and GULFSTREAM would have sufficient stall space. GULFSTREAM did not build more than 1,300 stalls because many of the horses that were going to run at its race track were stabled at the former TROPICAL racing facility, and after 1972 (when TROPICAL leased the CALDER facility), at the CALDER racing facility. Consequently, there was no reason for GULFSTREAM to build additional stables (as CALDER did) because it used CALDER stables in connection with the operation of its race meet. However, nothing under the pari-mutuel laws and rules would prohibit GULFSTREAM from building additional stable space at its facility, should it feel such action is warranted. (GULFSTREAM has not added a new stable in 15 years.) For several years, GULFSTREAM has come to rely on the availability of CALDER's stables and racing strip to augment its own stables during the operation of its racing meet. With CALDER's stables available to it, GULFSTREAM could allocate numerous stables and stalls to horsemen who were bringing horses to GULFSTREAM which GULFSTREAM knew would not run in its meet. GULFSTREAM's stated reason for its stable management practice is that such allocation of stalls is necessary in order to attract better horses to its race meet. Mr. Donn, GULFSTREAM's corporate president, explained it in this way: Q. [By Mr. Brewton] You made several com- ments relating to different trainers and so forth that you were discussing, and I don't recall who in particular, but you made com- ments relating to people bringing down cer- tain prize horses, then the statement, are we to deny stalls to those people? A. [By Mr. Donn] Right. Q. We must offer that luxury? A. Right. Q. It's worth it if we get that horse? A. Right. Q. We have to accept other horses in order to get prime horses? A. Un huh. Sometimes. Q. It's worth it to see those horses run? A. It's worth it to Florida racing. Q. Is that the statements you made? A. Right. Q. Is that not a management decision you have made by Gulfstream Park, in your refer- ences to your business? A. It's a management decision that has been made at most other tracks in the country. If you got a prize horse, you write your ticket and that's the nature of the beast. Q. But that's management decisions you have made as to whether or not you have to do it? A. It's a management decision that he wants to increase the quality and quantity of racing. Q. At your race meet? A. Right. (Transcript of Hearing, pp. 230-231. In effects CALDER must keep its stables open in order to (in light of GULFSTREAM's stall allocation practice) assure adequate stables for the conduct of GULFSTREAM's meet. This requires CALDER and TROPICAL to bear the expense of keeping CALDER's stables open for the sole benefit of GULFSTREAM, whose need for CALDER's stables is created by its own stall allocation decisions; CALDER is vitally affected by those decisions but plays no part in them.
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 December 4, 1978 a horse trained by the Respondent was entered and ran in the second 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
The Issue The issues for disposition in this case are whether Hamilton Downs violated section 550.01215(3), Florida Statutes (2013), by failing to operate all performances specified on its license on the date and time specified, and whether the Division should be estopped from prosecuting Hamilton Downs.
Findings Of Fact The Division is the state agency charged with regulating pari-mutuel wagering activities in Florida pursuant to chapter 550, Florida Statutes. At all times material to the Amended Administrative Complaint, Hamilton Downs held a Quarter Horse Racing pari- mutuel permit issued by the Division, number 0000547-1000, that authorized Hamilton Downs to conduct pari-mutuel wagering on quarter horse races pursuant to chapter 550. On or about March 15, 2013, the Division issued a Permitholder Annual License & Operating Day License (the “operating license”), number 0000547-1001, to Hamilton Downs, which authorized Hamilton Downs to perform 20 regular quarter horse performances from June 18 through 22, 2014, at a rate of four performances a day. Each performance consisted of eight individual races. Thus, the operating license authorized a total of 160 races. In 2012 and 2013, Hamilton Downs conducted licensed quarter horse barrel match races at its facility. When the 2014 operating license was issued, Hamilton Downs intended to conduct a meet consisting of barrel match races. As a result of litigation that culminated several months before the commencement of the Hamilton Downs 2014 racing meet, the Division advised Hamilton Downs that it would not be able to conduct barrel match racing under its quarter horse racing operating permit. However, Hamilton Downs was permitted to conduct “flag-drop” racing during that period of time. From June 18 through 22, 2014, Hamilton Downs conducted the quarter horse “flag drop” racing meet pursuant to its operating license. Flag drop racing as performed at Hamilton Downs involved two horses racing2/ simultaneously on a crude dirt “track” approximately 110 yards in length. The track was straight for about 100 yards, with a pronounced rightward turn to the finish line, and was haphazardly lined with white stakes. The race was started by a person who waved a red cloth tied to a stick whenever it appeared that both horses were in the general vicinity of what the starter perceived to be the “starting line.” There was no starting box or gate. The track was in the middle of an open field. There was no grandstand, though there was a covered viewing area on “stilts” from which the state steward and track stewards could observe the races. The track had one betting window and tote machine in an on-site shed. The only window in the shed was, mercifully, occupied by a window-unit air conditioner. As stated by Mr. Haskell, “nothing about Hamilton Downs is real in terms of racetrack standards.” For several years prior to the 2014 meet, Hamilton Downs shared horses and riders with the racetrack in Gretna, Florida, and the North Florida Horsemen’s Association. Several weeks prior to the commencement of the Hamilton Downs 2014 meet, a schism developed between the groups. As a result, the Gretna racetrack and North Florida Horsemen’s Association prohibited its horses and riders from competing in Hamilton Downs meets. That action stripped Hamilton Downs of most of the horses and riders that it was relying upon to perform in its meet. Mr. Richards had the permitted dates, and was required to race on those dates to remain in compliance. He was able to make arrangements for horses “way down on the eligible list.” They were, for the most part, older horses of lesser quality. Nonetheless, Hamilton Downs did its best to fulfill its permitted slate of races. The pool from which the races were set included 19 horses and six riders. The horses and riders were supplied to Hamilton Downs by the Hamilton Downs Quarter Horse Association (HDQHA). The HDQHA believed it could provide enough horses to handle the meet. The horses, and their owners, were: Precious N Fritz -- Stardust Ranch, LLC Skippers Gold Tupelo -- Stardust Ranch, LLC Business Official -- Stardust Ranch, LLC Cutter With A Twist -- Stardust Ranch, LLC Dun It Precious Gal -- Stardust Ranch, LLC Heavens Trick -- Stardust Ranch, LLC Dancer Blue Ghost -- Amie Peacock Starpion N Skip -- Amie Peacock Twist N to Stardust -- Amie Peacock Docs Lil Jose -- Amie Peacock Dandees Bay Apache -- Amie Peacock Kings Hollywood Moon -- Amie Peacock Lassies Last Chance -- Elaine Tyre Sugars Daisy Bar -- Elaine Tyre Touch of Leaguer -- Elaine Tyre Joys Winning Touch -- Elaine Tyre Jazz Potential -- Emma McGee Sonney Dees Diamond -- Emma McGee Royal King Princess -- Richard McCoy The riders were: Amie Peacock Elaine Tyre Emma McGee Richard McCoy Nicholas McCoy Christine Bradley Each of the owners was licensed by the Division. The riders were mainly local riders. The breeds of the horses complied with state law regarding horses allowed to run in quarter horse races.3/ The horses had their ownership records and identifying tattoos, and their current Coggins forms, which are required to substantiate that they have tested negative for diseases. Mr. Stallings testified that there were no problems regarding the ages of the horses since “that is not something DBPR worries about.” The animal detention areas checked out and were secure. Mr. Taylor inspected the track and found no violations of track setup under the current rules. The horses and riders had access to the track for the three days prior to the meet for purposes of training and acclimating the horses to the track. The races at Hamilton Downs during June 2014 were conducted in the presence of a state steward. The races must be seen to be believed. The 14 events for which video evidence was received show a series of races involving -- as a rule -- tired, reluctant, skittish, or disinterested horses moving at a slow pace down the dust-choked path. There was no marked starting line or finish line. The horses were often yards apart when the red rag-on-a-stick was waved. With one exception (performance 2, race 7), the gait of the “racing” horses ranged between a slow walk and a canter. Horses often simply stood at the starting line before slowly plodding down the track. In one instance, a horse actually backed up, until a bystander took it by the lead, thereafter giving the horse a congratulatory slap on the rump when it began to move in a forward direction. Mr. Haskell noted races in which riders fell off of their horses, or in which a horse left the course. He described numerous races, aptly, as non- competitive because one or both of the entrants walked, including one race (day 3, card 3, race 5) in which the racing steed took 1 minute and 45 seconds to cover the 110-yard course. The overall quality of the videotaped races was about what one would expect of an entry-level campers’ horse show held at the conclusion of a two-week YMCA summer camp. The interest in the series of races by the betting public was commensurate with the quality of the races. Wagers were of the $2.00 variety. Over the course of the 160-race meet, a total of 10 bets were placed, with two of those reportedly placed by a representative of a competing facility in an effort to substantiate wrongdoing on the part of Hamilton Downs. Given the competitive level of the races, a $20 handle seems about right. Mr. Haskell testified that the same horses just kept racing over and over. However, his steward’s report noted that he “refer[ed] to the ‘rule book’ numerous times in the five days pertaining to ages of horses, number of races a horse may race in a limited time, etc., but the rules just didn’t exist.” Mr. Taylor expressed similar concerns with the failure of the horses to “break” at the start of the races, their slow pace, and other issues. He did not make a point of them or bring them to the attention of Hamilton Downs because there was “no rule violation.” Despite the bemused, occasionally embarrassed expressions on the faces of the riders as their horses ambled slowly down the track, the witnesses, including Mr. Haskell and Mr. Taylor, uniformly testified that the riders tried to make sure the races were competitive. Thus, the poor quality of the races cannot be attributed to a lack of effort on their part. “Coupled entries” are those in which horses owned by the same owner compete against one another in the same race. On the second race of the meet, it was discovered that the two horses scheduled to race were both owned by Amie Peacock. Although the racing program had been distributed to all race officials involved, including the state steward, no one noticed the coupled entry. The preponderance of the evidence indicates that the coupled entry was discovered immediately before the start of the race. The racing secretary attempted to alert the starter, but was unsuccessful. Therefore, the race was run.4/ When the coupled entry was discovered, and before the race was made official, a post-race meeting of roughly 30 minutes was held to determine how to proceed. A preponderance of the evidence indicates that the meeting participants included, among others, the state steward, the track stewards, the state investigative specialist, the racing secretary, and the track owner. During the meeting, Mr. Richards offered that the race could be “re-run,” an option that was rejected since there is no authority for re-running a race. Mr. Richards also proposed calling a “no-contest,” which would allow Hamilton Downs to request an additional race from the Division. An additional race is not a re-run of the disputed race, but is a replacement race to be conducted at a different time during the meet. Mr. Richards was familiar with the procedure for requesting an additional replacement race, and was fully prepared to do so. It is not uncommon for such requests to be made in all types of pari-mutuel activities. Mr. Haskell acknowledged the possibility of declaring a no-contest for the coupled entry, and agreed that if he had declared a no-contest, Hamilton Downs could have requested a “make-up date” to be approved by the Division. At the conclusion of the meeting, Mr. Haskell did not declare a no-contest. Rather, he decided to make the race “official.” As a result, Hamilton Downs could not request a make-up race. Mr. Taylor discussed the incident with management of Hamilton Downs, and promised to keep an eye out to make sure a coupled entry did not recur. After the second race of the meet, there were no further instances of coupled entries. Over the course of the meet, Mr. Haskell declared all of the 160 races, including the coupled entry race, to be official, whereupon the winner of the race was determined and results were entered by an Amtote employee into the computer and transmitted to the “hub.” At that point, wagers (if any) were paid out, and the tote was allowed to roll over to the next race. During the June 2014 races at Hamilton Downs, a purse, stake, or reward was offered for the owner of each horse to cross the finish line first. Mr. Richards was frank in his admission that the 2014 race season was important because it allowed Hamilton Downs to qualify for a cardroom license and, if ultimately allowed, slot machines. However, the reason for conducting the meet is of no consequence to the outcome of this proceeding. Hamilton Downs has, subsequent to the 2014 meet, conducted flag drop races at its facility pursuant to operating permits issued by the Division. Within the past five years, the Division has never filed an administrative complaint, suspended a pari-mutuel permitholder, or fined a pari-mutuel permitholder due to a failure to conduct a race at any particular speed. Within the past five years, the Division has never suspended a pari-mutuel permitholder for a violation of section 550.01215 that pertained to a race or races that were made official by a state steward.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED that a final order be entered dismissing the Amended Administrative Complaint. DONE AND ENTERED this 26th day of May, 2016, in Tallahassee, Leon County, Florida. S E. GARY EARLY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of May, 2016.
Findings Of Fact The Division of Pari-Mutuel Wagering of the Florida Department of Business Regulation is an agency charged with responsibility for implementation and enforcement of the statutory framework governing the conduct of pari-mutuel operations in Florida. The Division's agency head is its Director. The Division has initiated proceedings to adopt rules to establish procedures whereby dog racing tracks and jai alai frontons will select dates for matinee performances. Proposed Rule 7E-2.03 relates to the scheduling of matinee programs by dog racing tracks. It provides in pertinent part: The application [the track's application for an annual license, operating dates, meetings and the number of performances] shall designate the matinee programs to be conducted by the association. Each association shall be permitted during its authorized meeting to conduct a maximum of 54 matinee programs on the days of its choice. Provided, however, that no association located in a county where there is a thoroughbred association or within a radius of 35 miles of another pari-mutuel association shall be permitted to conduct more than 3 matinee programs during any calendar week of its authorized meeting, except that a matinee program can be scheduled on New Year's Day, Memorial Day, July 4th, Labor Day and Thanksgiving Day. Provided, further, that in those counties where a thoroughbred association is authorized to have dark during its meeting all other pari-mutuel associations in the same county may conduct their matinee programs on any or all such dark days as long as the total for the respective association does not exceed 54 matinee programs. Proposed Rule 7E-3.03(32) relates to selection of matinee dates by jai alai frontons, and contains language that is functionally identical to Proposed Rule 7E-2.03. The effect of these proposed rules would be to allow dog racing tracks and jai alai frontons to schedule up to fifty-four matinee programs during their authorized operating dates. If the track or fronton is located in a county where there is a horse racetrack, no more than three matinee programs can be scheduled during any calendar week, except for the designated holidays. The Respondent conducted a public hearing with respect to the proposed rules on January 19, 1981. The Petitioners, Calder Race Course, Inc., and Tropical Park, Inc.; and the Intervenors Gulfstream Park Racing Association and Hialeah, Inc., are horse racetrack operators. These parties are affected by the proposed rules because the proposed rules would allow dog racing tracks and jai alai frontons to operate matinee programs at the same time that horse race programs are being run by these parties. The Intervenors WJA Realty; Biscayne Kennel Club, et al.; and St. Petersburg Kennel Club are operators of dog racing tracks or jai alai frontons. They are affected by the proposed rules because the proposed rules would allow dog racing tracks and jai alai frontons to operate matinee programs at the same time that horse race programs are being run by these parties. The horse racetrack parties are located in Dade County or Broward County, Florida. They conduct only daytime, matinee programs. The dog track and jai alai fronton parties, other than St. Petersburg Kennel Club, Inc., operate in Dade County and Broward County, Florida. They are all located within a radius of thirty-five miles of other pari-mutuel associations, and in the same county with thoroughbred associations. Prior to 1970, dog tracks and jai alai frontons in Southeast Florida conducted nighttime programs almost exclusively. Horse track operators conducted, and continue to conduct, only matinee programs. During the decade of the 1970's, dog tracks and jai alai frontons began conducting an increasing number of matinee programs under various regulatory systems imposed by the Division of Pari-Mutuel Wagering, or its predecessors. In 1978 the Division adopted a policy which is in all material respects identical to the policy that the Division is seeking to implement through the adopting of the rules which are the subject of this proceeding. While it appears to have been the Division's intent to adopt the policy as a rule in 1978, the policy was never formally filed with the Office of the Secretary of State, and was therefore not adopted as a rule. It has, nonetheless, been in operational effect since 1978. The Division's experience with the policy has been favorable. Dog track and jai alai fronton operators have chosen days for operating matinee programs which are most profitable. The State obtains revenue from these operations based upon a percentage of the "handle" or the dollar volume that goes through a facility on a given day. The more money an operation takes in, the more revenue the State obtains. The State's experience with the matinee policy has been favorable from a revenue generating perspective. Horse track operators are to some degree affected by having dog tracks and jai alai frontons operating conflicting matinee programs. The degree of this effect has not been established with any precision. Horse track operators have experienced operational difficulties during the past decade. Many factors have contributed to these difficulties. It has not been established that having matinee competition from dog tracks and jai alai frontons has been a significant factor. Various statistics were presented by the parties in an effort to show either that matinee competition has resulted in a diminution of the handle of horse racetracks, or the contrary. The statistics were not prepared in such a manner as to isolate the impact of matinee competition upon the revenues of horse racetracks. Even if any such findings could be isolated from the statistics that have been presented, the conclusions would be conflicting. Certainly having competition drains some customers from horse racetracks. The extent of this impact cannot, however, be determined from the evidence presented in this proceeding.
The Issue The first issue is whether the Greyhound Veterinary Assistant Procedures Manual published by the Division of Pari- Mutuel Wagering ("Division Manual") constitutes an unadopted rule in violation of section 120.54(1)(a), Florida Statutes (2014).1/ Petitioner further contends that the agency materially failed to follow applicable rulemaking procedures with respect to the Division Manual; that it is vague, fails to establish adequate standards for agency decisions, invests unbridled discretion in the agency; and is arbitrary and capricious, in violation of sections 120.52(8)(a), (d), and (e). A second issue is whether Florida Administrative Code Rule 61D-6.002 is an invalid exercise of delegated authority because it enlarges, modifies, or contravenes the provisions of section 550.0251(3), Florida Statutes; is vague, fails to establish adequate standards for agency decision, or vests unbridled discretion in the agency; or is arbitrary and capricious, in violation of sections 120.52(8)(c), (d), and (e). Petitioner further contends that rule 61D-6.002 violates Petitioner's due process rights and is therefore unconstitutional.
Findings Of Fact Petitioner, Mr. Robert Dawson, is the holder of an Unrestricted U-1 Professional Pari-Mutuel License authorizing him to train racing greyhounds pursuant to section 550.105, Florida Statutes. Mr. Dawson is subject to chapter 550 and the administrative rules promulgated thereunder in Florida Administrative Code Chapter 61D. Respondent, the Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering ("Division"), is a state agency delegated the responsibility for the implementation and enforcement of Florida's pari-mutuel laws under chapter 550, including the licensing and regulation of all pari-mutuel activities in Florida. In the past, the Division used to take urine samples from dogs after a race, usually from the winner. The dogs to be tested would be announced, and the owner or his representative could then witness the sample collection and sign indicating that he had witnessed the sample being taken. In late 2008, the Division changed the procedures that it follows and began to take pre-race samples. Mr. Jorge Callejas testified that many dogs tend to urinate prior to the race, and it was noted that, after a race, they were tired and not as interested in urinating. The Division had monitored statistics and found that with post-race collections, the number of samples that did not have a sufficient quantity for testing was very high. After switching to pre-race testing, the number of untestable samples went down significantly. At that time, they began using an earlier version of the Division Manual, which sets forth procedures to be followed by veterinary assistants employed by the Division working with the racing greyhound program. The Division now conducts random pre-race urine sample collections at all of its licensed greyhound race tracks. The Division uses the Division Manual at all greyhound racing facilities in the state of Florida. The Division provides the Division Manual to its veterinary technicians working at the licensed greyhound race tracks. The Division Manual was last amended on March 31, 2010. The Division Manual is properly attributable to the Division as an institution. The Division filed two administrative complaints against Mr. Dawson for violations of section 550.2415, which are pending before DOAH with case numbers 14-4450PL and 14-4719PL. Trainers of dogs with a positive urine test can face severe sanctions. As a greyhound trainer, Mr. Dawson's responsibilities include feeding the dogs, examining them for injuries, keeping them at the proper weight, preparing them for weigh-in before each race, and keeping them healthy. Occasionally, he also personally takes the dogs to the track. On a race day, the dogs are typically walked, cleaned up by a kennel helper, weighed-in, and then given to the "leadouts." Leadouts are not employed by the individual kennels, but are employed by the track. The leadouts place the dogs in the ginny pit area, sometimes called the lock-up, an area where the dogs stay until their scheduled race. Trainers and kennel helpers are not allowed in the ginny pit area. Trainers and helpers therefore have no access to their dogs for an extended period of time until the race begins and have no control over the employees of the track (leadouts and kennel master) who do have access to the dogs during that time. Pre-race urine specimens are randomly taken from dogs in an outdoor, fenced area adjacent to the ginny pit building by veterinary assistants employed by the Division. This area is open to view by the public, including trainers or their helpers, but only track employees and Division personnel are allowed access to the area. The area where trainers have to be to pick up their dogs is on the opposite side of the building, and from this location, the view of the open area where samples are taken is blocked by the building. Trainers and helpers are routinely occupied with their other dogs and do not have time to watch the pre-race sample collection, especially since they do not know if one of their dogs will be sampled or not. The Division does not individually notify each trainer of record or kennel worker for racing animals when random pre- race urine collection will occur. Trainers and kennel workers are not advised that their greyhounds are going to be tested on a particular day. The Palm Beach Kennel Club does not have video cameras in place that would allow trainers or their helpers to view the dogs while they are in the ginny pit area. Mr. Arthur Agganis, as president of the Palm Beach Greyhound Association, petitioned the general manager to put in some cameras, at the association's expense, but no cameras have been installed. There is a camera in the open area where samples are collected, but trainers and helpers cannot view the feed from this camera. In horseracing, horse trainers are not prohibited from physically accessing their horses prior to the start of each horse's race. As the southern regional manager of greyhound tracks, Mr. Callejas visits the tracks under his responsibility and ensures that each track is following the Division Manual's sampling and testing procedures, including the chain-of-custody procedures. Ms. Jill Blackman testified that the Division Manual was a guideline used for training veterinary assistants in the field. Section 3 of the Division Manual ("Section 3") consists of nine subsections: 3.1 Greyhound Sampling Priority; 3.2 The Collection Process; 3.3 Meeting and Identifying the Greyhound; 3.4 Collecting the Specimen; 3.5 Sealing the Sample; 3.6 Completing the Required Forms; 3.7 Storing the Sample; 3.8 Preparing Samples for Shipment; and 3.9 Shipment of Samples. After the veterinary assistant identifies the dog and collects the sample, the sample is sealed in the cup with evidence tape, labeled, and taken to a freezer in the veterinary assistant's office, where it is locked up. Section 3 does not require the Division to advise trainers of when urine sample collection occurs. Section 3 does not require the Division to ensure that the trainer witness the urine sample collection process or to ensure that the Division obtain the trainer's signature on the specimen card. The Division Manual states on page six that one of the primary duties of the veterinary assistant is to "study and put into practice the procedures outlined in this manual." It goes on to emphasize the importance that all those collecting urine samples understand the proper procedures, and "follow those procedures EACH AND EVERY TIME." Section 3 states at page ten, "Those collecting samples must follow strict chain-of-custody procedures in order to stand as credible evidence in a judicial proceeding." It then goes on to prescribe a "strict sequence of events" that must be followed to ensure that samples are properly collected, sealed, and secured to avoid tampering or alteration. It sets forth procedures to correctly identify a greyhound by the numbers tattooed on its ear, prepare required forms, store collected samples, prepare them for shipment, and maintain the security of the backside areas. Division employees do not have discretion not to follow the Division Manual; its provisions are mandatory and enforced by the Division. The integrity of greyhound racing in Florida is important to citizens betting on the outcome of races and to the dog owners, trainers, and other employees who earn their livelihood in the industry. The procedures followed to collect samples and otherwise ensure the integrity of the sport are important to dog trainers and to the public. A notice of rule development for existing rule 61D- 6.005, entitled Procedures for Sampling of Racing Animals, has been published. Mr. Dawson, as a dog trainer subject to possible discipline under the "absolute insurer" rule, 61D-6.005, is substantially affected by the sample collection and testing procedures of Section 3. He has alleged a real and sufficiently immediate injury in fact. Chapter 550 contains procedures such as "split sampling" to protect trainers and ensure integrity of the testing process, and Mr. Dawson comes within the zone of interest of chapter 550. In his petition, Mr. Dawson sufficiently alleged that Section 3 of the Division Manual was an unadopted rule and attached a copy of it to his petition. Section 3 constitutes a rule within the definition of section 120.52(16). Section 3, or a substantially similar statement reflecting the Division's sample collection process for racing greyhounds, has not been adopted as a rule under chapter 120. It is practicable and feasible to adopt Section 3 as a rule. Rule 61D-6.005 is uniform in its application and effect. The rule is not vague, does not fail to establish adequate standards for Division decisions, or vest unbridled discretion in the Division. The rule is not arbitrary or capricious.
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
The Issue The issues for disposition in this case are whether proposed rules 61D-2.024(5); 61D-2.025(1), (2), (4), (7), and (8)(a); 61D- 2.028(2)(a)-(d), (6), (7), and (8); and 61D-2.029 are invalid exercises of delegated legislative authority as defined in section 120.52(8), Florida Statutes.
Findings Of Fact Petitioner is the horsemen’s association that represents the majority of the quarter horse owners and trainers at Gretna Racing, LLC (“Gretna Racing”). Gretna Racing holds a pari-mutuel permit and annual operating license that authorizes Gretna Racing to conduct pari-mutuel wagering on quarter horse races pursuant to chapter 550, Florida Statutes. The Horsemen’s Agreement between Petitioner and Gretna Racing has been filed with the Division in accordance with sections 550.002(11) and 849.086(13)(d)3. As the organization representing the majority of the horsemen participating in horse racing events conducted at Gretna Racing, NFHA is the statutorily-entitled recipient to the purses paid for the performances at Gretna Racing. Petitioner has approximately 200 members, the majority of whom are owners, trainers, and jockeys of American Quarter Horses and other breeds that are authorized to participate in pari-mutuel quarter horse races. The Division has issued occupational licenses to the majority of Petitioner’s members. Respondent, Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering (Respondent or Division), is the state agency charged with regulating pari- mutuel wagering activities in Florida pursuant to chapter 550. Intervenor is tasked by statute with certain functions concerning the conduct and promotion of pari-mutuel quarter horse racing at racetracks throughout Florida. Intervenor is the Florida affiliate of the American Quarter Horse Association (AQHA), which is the national quarter horse membership organization responsible for maintaining uniform standards for American quarter horse racing worldwide. NFHA’s members engage in non-traditional quarter horse racing, including “barrel match” and “flag drop” racing. Barrel match racing involves two adjacent rectangular tracks on which the horses and riders complete a cloverleaf pattern around preset barrels. Flag drop racing involves two or more horses racing simultaneously on a common, straight course of approximately 100 yards in length that is started by a flag drop, rather than a starting box or gate. Gretna Racing’s existing track configuration supports these forms of quarter horse racing. NFHA’s members and their horses are specifically trained for barrel match and flag drop racing and most would require extensive additional training to participate in other racing formats. Barrel match racing and flag drop racing, as they have been conducted at Gretna Racing, will not be capable of being run on quarter horse tracks that meet the standards to be adopted by proposed rules 61D-2.024 and 61D-2.025. Many of Petitioner’s members will not meet the jockey requirements to be adopted by proposed rule 61D-2.028 without additional training, and would be required to purchase racing uniforms under the proposed rule. On October 19, 2011, the Division issued an annual operating license to Gretna Racing, which authorized it to conduct racing performances under its previously-issued quarter horse racing permit during the 2011/2012 season. For reasons best explained by Administrative Law Judge John Van Laningham in Florida Quarter Horse Racing Association, Inc. v. Department of Business & Professional Regulation, Case No. 11-5796RU (Fla. DOAH May 6, 2013), the annual operating license had the effect of approving the conduct of barrel races at Gretna Racing. Following the Division’s issuance of the annual operating license to Gretna Racing, FQHRA challenged the Division’s approval of pari-mutuel barrel match racing as an unadopted rule. After an evidentiary hearing, a Final Order was issued on May 6, 2013, determining that “the policy of the Division pursuant to which "Gretna-style" barrel match racing is treated as the legal equivalent of traditional quarter horse racing, so that a quarter horse racing permitholder is able to obtain an annual license authorizing pari-mutuel wagering operations on barrel match racing, is an unadopted rule which violates section 120.54(1)(a), Florida Statutes.” Florida Quarter Horse Racing Ass’n, Inc. v. Dep’t of Bus. & Prof’l Reg., DOAH Case No. 11-5796RU at 78. The Final Order was affirmed by the First District Court of Appeal, quoting Judge Van Laningham with approval, that: To be legal and enforceable, a policy which operates as law must be formally adopted in public, through the transparent process of the rulemaking procedure set forth in section 120.54. In sum, the Division's policy of licensing the conduct of pari- mutuel wagering on [barrel match racing], on the ground that [barrel match racing] is legally equivalent to quarter horse racing, constitutes an unadopted rule. As such, it violates section 120.54(1)(a). Fla. Quarter Horse Track Ass’n, Inc. v. Dep’t of Bus. & Prof’l Reg., 133 So. 3d 1118, 1119-1120 (Fla. 1st DCA 2014). Following the entry of that Final Order, NFHA entered into a Consent Order with the Division that allows match races started by a flag drop as a pari-mutuel event pending the adoption of rules establishing standards for quarter horse racing. As a result of the Final Order, the Division began its rule development process for the proposed rules at issue in this proceeding when a Notice of Development of Rulemaking was published on September 6, 2013, in Volume 39, Number 174 of the Florida Administrative Register. A rule development workshop was held on October 16, 2013, in Fort Lauderdale, Florida. A second Notice of Development of Rulemaking was published on August 6, 2014, in Volume 40, Number 152 of the Florida Administrative Register. Another rule development workshop was held on August 27, 2014, in Orlando, Florida. The Division published a third Notice of Development of Rulemaking on December 24, 2014, in Volume 40, Number 248 of the Florida Administrative Register. A final rule development workshop was held on January 14, 2015, in Tallahassee, Florida. Representatives of numerous entities, including NFHA and FQHRA, participated in the workshops. On June 30, 2015, the Division published Notice of Proposed Rules 61D-2.024 through 61D-2.029 in Volume 41, Number 126 of the Florida Administrative Register. A public hearing was held on July 20, 2015, where representatives of numerous interested entities spoke and submitted written comments. On July 28, 2015, the Division published a Notice of Change to the proposed rules in Volume 41, Number 145 of the Florida Administrative Register. NFHA filed a petition challenging several of the proposed rules on July 30, 2015. On August 21, 2015, NFHA filed an Amended Petition to Determine Invalidity of Proposed Rules, which was accepted by the ALJ. FQHRA filed a Motion to Intervene in the case on September 18, 2015. That motion was granted on September 22, 2015. NFHA’s Amended Petition challenged the following rules proposed by the Division: 61D-2.024(5); 61D-2.025(1), (2), (4), (7) and (8)(a); 61D-2.028(2)(a)-(d), (6), (7), and (8); and 61D- 2.029. The challenged rules purport to implement provisions of chapter 550, which governs pari-mutuel wagering. NFHA contends that the challenged rules are an invalid exercise of the Division’s delegated legislative authority because, in violation of section 120.52(8)(b), the Division is exceeding its grant of rulemaking authority in adopting the rules and, in violation of section 120.52(8)(c), the challenged rules enlarge, modify, or contravene the law implemented. NFHA further contends that each of the challenged rules violates the “flush left” language in section 120.52(8). Finally, NFHA asserts that proposed rules 61D-2.028(2)(a)-(d), (6), (7), and (8); and 61D-2.029 are vague in violation of section 120.52(8)(d).
The Issue The Petitioner has accused the Respondent, Francis Clifford Joyce, with a violation of Rule 7E-1.06(11)(a), Florida Administrative Code, which reads: a) 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 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 any such medi- cation, 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, which indicates that "The trainer shall he responsible for, and be the insurer of the conditions of the horses he enters. Trainers are presumed to know the rules of the Division." Specifically, Respondent Joyce is accused under facts that allege that on October 16, 1978, the horse, Hawaiian Gardens, trained by the Respondent did race in the Second (2nd) race at Calder race course, finishing in the first (1st) position. Subsequent to the race on the same date, a urine specimen was taken from the horse, Hawaiian Gardens, and assigned sample number S 08484 A, and that specimen was allegedly analyzed by the Petitioner's laboratory. It is further alleged that on December 22, 1978, the Division of Pari-Mutuel Wagering laboratory reported the results of a test and that 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 Francis Clifford Joyce. At all times pertinent to the Administrative Complaint, Francis Clifford Joyce was the holder of license Nos. K-4547, K-4201 and K-2575 issued by the Petitioner to the Respondent, Francis Clifford Joyce, to operate as a horse trainer for horses racing at the various 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. Included in the body of rules are Rules 7E-1.00(11)(a) and 7E-1.18(3), Florida Administrative Code, alluded to in the issue statement of this Recommended Order. These rules as set out in the issue 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 reveal that the Respondent, Francis Clifford Joyce, was operating in his capacity as a horse trainer on October 16, 1978, at the Calder race course in Broward County, Florida. On that date, a horse for which he was the trainer, named Hawaiian Gardens, ran in the second race and finished in first place. Prior to the race, the horse, Hawaiian Gardens, had been in the custody and control of the Respondent in the sense that the horse was in the presence of the Respondent before the race. The horse was treated in the morning prior to the race by medications, ACTH, Steroids, Lasix and for Myopathy, as shown by the Petitioner's Exhibit No. 5 admitted into evidence, which is a copy of the invoice of the treating veterinarian, Carl J. Meyer, D.V.M. The first of the medications was given around eight o'clock and further medication was given around nine or nine thirty and that medication was Lasix, which is a substance given for horses who have tendencies to bleed. Around eleven thirty or twelve o'clock an injection was given by Dr. Meyer for a condition which Dr. Meyer later described as Myopathy. Joyce saw the injection administered but did not question Dr. Meyer about what was in the injection. The second race occurred around 1:15 p.m. and, subsequent to the race, Hawaiian Gardens was taken to the detention barn for purposes of taking a urine sample for testing to detect any narcotics. The horse entered the area of the detention barn around 2:00 p.m. The horse started a cooling down period and walk-off around 2:05 p.m. and was back in the stall at 2:25 p.m., at which point the urine sample was taken and the horse was out of the detention barn at 2:30 p.m. The next day, on October 17, 1978, the Respondent inquired of Dr. Meyer about the previous day's treatment for Hawaiian Gardens. Dr. Meyer replied that he gave the horse a treatment for Myopathy, attention to the horse's nervous system. Joyce made no further inquiry of Meyer about the treatment for Myopathy. The urine sample of the horse, Hawaiian Gardens, was examined by a series of tests and the urine sample revealed a positive identification of a substance known as Despropionyl Fentanyl, which is classified as a derivative of Fentanyl Citrate, a narcotic. This particular narcotic, Fentanyl Citrate, metabolizes to become Despropionyl Fentanyl, a central nervous system stimulant in horses. The trade name for Fentanyl Citrate is Sublimaze. Under the circumstances, it is clear that the horse, Hawaiian Gardens, had run in the second race at Calder race course on October 16, 1978, at a time the horse had the substance, Despropionyl Fentanyl, in its system and this had resulted from Dr. Meyer's injection of Sublimaze around eleven thirty or twelve o'clock on October 16, 1978, which he fraudulently called a treatment for Myopathy. Joyce had no knowledge of Meyer's intentions nor the act of injecting the horse with Sublimaze.
Recommendation It is recommended that the case against the Respondent, Francis Clifford Joyce, related to the incident on October 16, 1978, involving the horse, Hawaiian Gardens, be DISMISSED. DONE AND ENTERED this 23rd day of August, 1979, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: S. Frates, Esquire Frates, Floyd, Pearson, Stewart, Richman & Greer, P.A. One Biscayne Boulevard, 25th Floor Miami, Florida 33131 David M. Maloney, Esquire Staff Attorney Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Mr. Francis Clifford Joyce 1015 South 17th Avenue Hollywood, Florida 33020 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF BUSINESS REGULATION STATE OF FLORIDA, DEPARTMENT OF BUSINESS REGULATION, DIVISION OF PARI-MUTUEL WAGERING, Petitioner, vs. CASE NO. 79-227 FRANCIS CLIFFORD JOYCE, Respondent. /
