99-005254RX Daniel G. Hennessey vs. Department Of Business And Professional Regulation, Division Of Pari-Mutuel Wagering Status: Closed DOAH Final Order on Thursday, January 4, 2001.

Summary: Rule 61D-6.002 is a valid exercise of delegated legislative authority.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DANIEL G. HENNESSEY, FRED G. )

WARREN, and CELESTINA M. GANGEMI, )

)

Petitioners, )

)

vs. ) Case Nos. 99-5254RX

) 00-2821RX

DEPARTMENT OF BUSINESS AND ) 00-3809RX

PROFESSIONAL REGULATION, DIVISION )

OF PARI-MUTUEL WAGERING, )

)

Respondent. )

__________________________________)

FINAL ORDER

Pursuant to notice, a formal hearing was held in this case

on October 26, 2000, in Tallahassee, Florida, before

Susan B. Kirkland, a designated Administrative Law Judge of the

Division of Administrative Hearings.

APPEARANCES

For Petitioner: Cynthia S. Tunnicliff, Esquire

Martha J. Edenfield, Esquire

Pennington, Moore, Wilkinson,

Bell & Dunbar, P.A.

Post Office Box 10095

Tallahassee, Florida 32302-2095

For Respondent: Joseph M. Helton, Jr., Esquire

Michael M. Mills, Esquire

Department of Business and

Professional Regulation

Division of Pari-Mutuel Wagering

1940 North Monroe Street

Tallahassee, Florida 32399-2202

STATEMENT OF THE ISSUE

Whether Rule 61D-6.002(1), Florida Administrative Code, is

an invalid exercise of delegated legislative authority.

PRELIMINARY STATEMENT

On December 10, 1999, Petitioner, Daniel J. Hennessey

( Hennessey), filed a Petition for Administrative Hearing Pursuant

to Section 120.56(3), Florida Statutes, challenging the validity

of Rule 61D-6.002(1), Florida Administrative Code. The case was

assigned Division of Administrative Hearings (DOAH) Case

No. 99-5254RX. On July 7, 2000, Petitioner, Fred G. Warren

(Warren), filed a Petition for Administrative Hearing Pursuant to

Section 120.56(3), Florida Statutes, also challenging the

validity of Rule 61D-6.002(1), Florida Administrative Code. The

case was assigned DOAH Case No. 00-2821RX. The cases were

consolidated by order dated August 7, 2000.

On September 12, 2000, Petitioner, Celestina M. Gangemi

(Ms. Gangemi), filed a petition, challenging the validity of

Rule 61D-6.002(1), Florida Administrative Code. The case was

assigned DOAH Case No. 00-3809RX. On September 13, 2000, the

Department of Business and Professional Regulation, Division of

Pari-mutuel Wagering (Department) forwarded the request for an

administrative hearing from Ms. Gangemi to DOAH for assignment to

an Administrative Law Judge. The request for an administrative

hearing related to an administrative complaint the Department

filed against Ms. Gangemi, alleging that she violated Subsection

550.2415(1)(a), Florida Statutes. The case was assigned DOAH

Case No. 00-3816PL.

All of the above-referenced cases were consolidated for

final hearing by order dated September 20, 2000.

The parties entered into a Prehearing Stipulation in which

they agreed to the facts contained in paragraphs 1-28 of the

Prehearing Stipulation.

At the final hearing, Petitioners in the rule challenge and

Respondent in the disciplinary action, hereinafter collectively

referred to as Gangemi, submitted Gangemi Exhibits 1-4, which

were admitted in evidence. The Department's Exibits 1-13 were

admitted in evidence. The depositions of Arthur Monterio,

Almarosa deViteri, Walter Hyde, Celestina Gangemi, Daniel

Hennessey, Fred G. Warren, and Thomas Tobin were admitted.

Gangemi called Paul Kirsch and David Romanik as witnesses.

The Department called Ian Ronald Tebbett, James Decker, Paul

Kirsch, and Gary Rutledge as witnesses.

Official recognition was taken of Chapter 80-270, Laws of

Florida; Section 27 of Chapter 92-348 Laws of Florida;

Sections 550.2405-550.2616, Florida Statutes (1991); and

Rule 305A-1.35, Florida Administrative Code, as adopted May 28,

1964.

The parties agreed to file proposed final orders within

twenty days of either the filing of the Transcript or the filing

of the deposition of Walter Hyde, whichever was later. The two-

volume Transcript was filed on November 13, 2000, and the

deposition of Walter Hyde was filed on November 14, 2000. The

parties filed Proposed Final Orders on December 4, 2000. The

Proposed Final Orders have been considered in rendering this

Final Order.

FINDINGS OF FACT

1. Hennessey is the holder of an unrestricted U-1

Professional Pari-mutuel License authorizing him to train horses,

which license is issued to Hennessey by the Department pursuant

to the provisions of Section 550.105, Florida Statutes.

2. Hennessey was charged in a hearing before the Stewards

at Pompano Park with violating the provisions of Section

550.2415, Florida Statutes, regarding an impermissible drug found

in a race horse entered to race by Hennessey.

3. The disciplinary action was initiated by the Stewards

against Hennessey after a post-race urine sample taken from a

horse trained by Hennessey won a race at Pompano Park indicated

the presence of two substances, caffeine and theophylline, a

metabolite of caffeine.

4. Hennessey testified at the hearing before the Stewards

that he neither administered nor directed anyone to administer

caffeine to the subject horse.

5. Application of Rule 61D-6.002, Florida Administrative

Code, makes Hennessey strictly liable for impermissible drugs

found in horses he enters to race at pari-mutuel wagering

facilities in the State of Florida. No evidence of willful

administration of caffeine by Hennessey is known to exist.

6. Warren is the holder of an unrestricted U-1 Professional

Pari-mutuel License, License Number 0024037-1081, authorizing him

to train horses. The license was issued to Warren by the

Department pursuant to the provisions of Section 550.105, Florida

Statutes.

7. Warren was the trainer of record of a thoroughbred horse

named "The Issue is Power," which won the fifth race conducted on

November 12, 1999, in Miami, Florida, at the Tropical Park at

Calder Race Meeting.

8. After the race concluded, a urine sample, sample number

540322, was taken from "The Issue is Power" at the detention

facility operated by the Department.

9. Sample number 540322 was tested by the University of

Florida Racing Laboratory, and that sample was found to contain

benzoylecgonine, which is a metabolite of cocaine. The estimated

concentration of benzoylecgonine was 50 to 54 nanograms per

milliliter.

10. Testing of sample number 540322 did not show the

presence of egonine methyl ester, which is another metabolite of

cocaine.

11. Warren denies that he knowingly or intentionally

administered cocaine to the horse "The Issue is Power" at any

time.

12. Application of Rule 61D-6.002, Florida Administrative

Code, makes Warren strictly liable for impermissible drugs found

in horses he enters at pari-mutuel wagering facilities in the

State of Florida. No evidence of willful administration of

cocaine by Warren is known to exist.

13. Ms. Gangemi, is the holder of an unrestricted U-1

Professional Pari-mutuel License, License Number 0257328-1081,

authorizing her to train horses. The license was issued to

Ms. Gangemi, by the Department pursuant to the provisions of

Section 550.105, Florida Statutes.

14. Ms. Gangemi was the trainer of record of a thoroughbred

horse named " Quanchotaug," which finished third in the ninth race

race of the matinee performance conducted on July 11, 2000, in

Miami, Florida, at Calder Race Course, Inc.

15. After the race concluded a urine sample, sample number

658542, was taken from " Quanchotaug" at the detention facility

operated by the Department.

16. Sample number 658542 was tested by the University of

Florida Racing Laboratory, and that sample was found to contain

benzoylecgonine. The estimated concentration of benzoylecgonine

was 10 nanograms per milliliter.

17. A split sample analysis performed by the Center For Tox

Services, an independent laboratory in Tempe, Arizona, confirmed

the presence of benzoylecgonine in sample number 658542. The

estimated concentration of benzoylecgonine was 2 nanograms per

milliliter.

18. Application of Rule 61D-6.002, Florida Administrative

Code, makes Ms. Gangemi strictly liable for impermissible drugs

found in horses she enters to race at pari-mutuel wagering

facilities in the State of Florida. No evidence of willful

administration of cocaine by Ms. Gangemi is known to exist.

19. Testing of sample 658542 did not show the presence of

egonine methyl ester.

20. The administration or exposure of cocaine directly into

the post-race urine sample of a horse could result in the

presence of the metabolite benzoylecgonine.

21. Pompano Park is authorized to conduct pari-mutuel

wagering upon harness horse racing pursuant to a permit issued to

it by the Department under Section 550.054, Florida Statutes.

opical Park is authorized to conduct pari-mutuel

wagering upon thoroughbred horse racing pursuant to a permit

issued to it by the Department under Section 550.054, Florida

Statutes.

23. Calder Race Course is authorized to conduct pari-mutuel

wagering upon thoroughbred horse racing pursuant to a permit

issued to it by the Department pursuant to Section 550.054,

Florida Statutes.

24. Horse racing, at its best, is difficult to control, and

would be practically impossible to regulate if every governing

rule and regulation were made dependent for validity upon the

knowledge or motives of the person charged with a violation. It

would be almost impossible to prove guilty knowledge or intent in

cases involving a reported positive test for an impermissible

substance.

25. Every consideration surrounding the business of

operating a race track, and the racing of horses thereon, seems

to call for firm and rigid rules placing responsibility and

imposing penalties for their violation.

26. The Department currently has six investigators assigned

to cover 35 permitholders. The investigators are well known

around the various race tracks they cover, which makes catching

possible drug violations in the act almost impossible.

27. The Department's investigators are generally notified

of a drug confirmation about ten days after a race has been run.

Given that there are so few investigators covering 35 tracks and

the reports are received ten days after a race, it would be very

difficult to successfully determine who administered a prohibited

substance to a horse.

28. The trainer is singularly the best individual to hold

accountable for the condition of a horse. The trainer is either

going to be with the horse at all times or one of his or her

employees or contractors is going to be with the horse at all

times, whether the horse is racing on an individual day or is

merely stabled at the track. A trainer of racing horses is

responsible for the animals' athletic conditioning. A trainer is

also responsible for providing for the regular care of the horses

he trains, including feeding and seeing to the medical needs of

the horses. All persons who handle an animal prior to the

running of a race are either employees of the track or Department

or are employed by or in a professional relationship with the

trainer. At no time prior to a race is a trainer or his employer

prohibited from seeing to the security of the horse in the

paddock. While there are other persons who come in contact with

the horse prior to a race, the trainer due to his responsibility

for the care and supervision of the animal stands in the best

overall position to prevent improper medication of the horse.

29. There is no practical alternative to holding the

trainer of record responsible for the condition of the animals he

enters to race. The Department's authority to require the return

of a purse is insufficient to deter wrongdoers from attempting to

affect the outcome of a race. The integrity of the pari-mutuel

industry would suffer from the Department's inability to enforce

statutes relating to the drugging of racing animals.

CONCLUSIONS OF LAW

30. The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties to this

proceeding. Section 120.56, Florida Statutes.

31. Petitioners challenge the validity of Rule 61D-

6.002(1), Florida Administrative Code, known as the Absolute

Insurer Rule, which, provides:

The trainer of record shall be responsible

for and be the absolute insurer of the

condition of the horses or racing greyhounds,

he/she enters to raceainers, kennel

owners and operators are presumed to know the

rules of the division.

32. Petitioners have standing pursuant to Section 120.56,

Florida Statutes, to bring this rule challenge.

33. Pursuant to Subsection 120.56(3), Florida Statutes, the

party challenging existing rules has the ultimate burden to

establish that the rule is an invalid exercise of delegated

legislative authority. Subsection 120.52(8), Florida Statutes,

provides:

(8) "Invalid exercise of delegated

legislative authority" means action which

goes beyond the powers, functions, and duties

delegated by the Legislature. A proposed or

existing rule is an invalid exercise of

delegated legislative authority if any one of

the following applies:

(a) The agency has materially failed to

follow the applicable rulemaking procedures

or requirements set forth in this chapter;

(b) The agency has exceeded its grant of

rulemaking authority, citation to which is

required by s. 120.54(3)(a)1.;

(c) The rule enlarges, modifies, or

contravenes the specific provisions of law

implemented, citation to which is required by

s. 120.54(3)(a)1.;

(d) The rule is vague, fails to establish

adequate standards for agency decisions, or

vests unbridled discretion in the agency;

(e) The rule is arbitrary or capricious;

(f) The rule is not supported by competent

substantial evidence; or

(g) The rule imposes regulatory costs on

the regulated person, county, or city which

could be reduced by the adoption of less

costly alternatives that substantially

accomplish the statutory objectives.

A grant of rulemaking authority is necessary

but not sufficient to allow an agency to

adopt a rule; a specific law to be

implemented is also required. An agency may

adopt only rules that implement or interpret

the powers and duties granted by the enabling

statute. No agency shall have authority to

adopt a rule only because it is reasonably

related to the purpose of the enabling

legislation and is not arbitrary and

capricious or is within the agency's class of

powers and duties, nor shall an agency have

the authority to implement statutory

provisions setting forth general legislative

intent or policy. Statutory language

granting rulemaking authority or generally

describing the powers and functions of an

agency shall be construed to extend no

further than implementing or interpreting the

specific powers and duties conferred by the

same statute.

34. Petitioners contend that there is no statutory

authority for the promulgation of Rule 61D-6.002(1), Florida

Administrative Code. Petitioners' argument is without merit. In

the recent decision, Southwest Florida Water Management District

v. Save the Manatee Club, Inc. , 2000 WL 1760116 (Fla. 1st DCA

2000), the court discussed the 1999 amendments to

Subsection 120.52(8), Florida Statutes, and stated:

One significant feature of the new statute

is that it contains an additional statement

of the factors that are not sufficient to

justify the adoption of an administrative

rule. Section 120.52(8) now provides that an

agency shall not have authority to adopt a

rule merely because the rule "is within the

agency's class of powers and duties." By

including this language in the 1999 version

of the statute, the Legislature has rejected

the standard we adopted in Consolidated

Tomoka . An administrative rule must

certainly fall within the class of powers and

duties delegated to the agency, but that

alone will not make the rule a valid exercise

of legislative power.

Another important aspect of the new statute

is that it modifies the standard for

determining whether the rule is a valid

exercise of legislative authority. Section

120.52(8) now provides that "an agency may

adopt only rules that implement or interpret

the specific powers and duties granted by the

enabling statute." The parties suggested

various interpretations of this new language

based on the legislative history of the

statute, but we conclude that it would be

improper to construe the statute beyond its

terms. A court may resort to extrinsic aids

in determining legislative intent only if the

language used in a statute is ambiguous. See

Holly v. Auld , 450 So. 2d 217 (Fla. 1984);

Rhodes v. State , 704 So. 2d 1080 (Fla. 1st

DCA 1997). The limitation in section

120.52(8) to rules that implement or

interpret specific powers and duties granted

by the enabling statute is clear and

unambiguous. Consequently, we have no reason

to add our own view of the legislative

intent.

In the absence of a special statutory

definition, we may assume that the word

"specific" was used according to its ordinary

dictionary definition. See WFTV v. Wilken ,

675 So. 2d 674 (Fla. 4th DCA 1996). The

ordinary meaning of the term "specific" is

"limiting or limited; specifying or

specified; precise, definite,[or] explicit."

See Webster's New World College Dictionary

1287 3rd Ed. 1996. "Specific is used as an

adjective in the 1999 version of section

120.52(8) to modify the phrase "powers and

duties." In the context of the entire

sentence, it is clear that the authority to

adopt an administrative rule must be based on

an explicit power or duty identified in the

enabling statute. Otherwise the rule is not

a valid exercise of delegated legislative

authority.

All of the litigants in this case agree

that the term "specific" was not used in the

1999 version of the statute as a synonym for

the term "detailed." We reached the same

conclusion in Consolidated- Tomoka , in our

interpretation of the 1996 statute, and that

part of our decision appears to have

survived. The new law gives the agencies to

"implement or interpret" specific powers and

duties contained in the enabling statute. A

rule that is used to implement or carry out a

directive will necessarily contain language

more detailed than that used in the directive

itself. Likewise, the use of the term

"interpret" suggests that a rule will be more

detailed than the applicable enabling

statute. There would be no need for

interpretation if all of the details were

contained in the statute itself.

It follows that the authority for an

administrative rule is not a matter of

degree. The question is whether the statute

contains a specific grant of legislative

authority for the rule, not whether the grant

of authority is specific enough. Either the

enabling statute authorizes the rule at issue

or it does not. . . .

35. Rule 61D-6.002, Florida Administrative Code, cites

Subsections 120.80(4)(a), 550.0251(3), and 550.2415(2), and(13),

Florida Statutes, as specific authority for the rule and Sections

550.0251, 550.2415 and 120.80(4), Florida Statutes, as the law

implemented.

36. Subsections 550.2415(1), (2), and (13), Florida

Statutes, provide:

(1)(a) The racing of an animal with any

drug, medication, stimulant, depressant,

hypnotic, narcotic, local anesthetic, or

drug-masking agent is prohibited. It is a

violation of this section for a person to

administer or cause to be administered any

drug, medication, stimulant, depressant,

hypnotic, narcotic, local anesthetic, or

drug-masking agent to an animal which will

result in a positive test for such substance

based on samples taken from the animal

immediately prior to or immediately after the

racing of that animal. Test results and the

identities of the animals being tested and of

their trainers and owners of record are

confidential and exempt from s. 119.07(1) and

from s. 24(a), Art. I of the State

Constitution for 10 days after testing of all

samples collected on a particular day has

been completed and any positive test results

derived from such samples have been reported

to the director of the division or

administrative action has been commenced.

(b) It is a violation of this section for

a race-day specimen to contain a level of

naturally occurring substance which exceeds

normal physiological concentrations. The

division may adopt rules that specify normal

physiological concentrations of naturally

occurring substances in the natural untreated

animal and rules that specify acceptable

levels of environmental contaminants and

trace levels of substances in test samples.

(c) The finding of a prohibited substance

in a race-day specimen constitutes prima

facie evidence that the substance was

administered and was carried in the body of

the animal while participating in the race.

(2) Administrative action may be taken by

the division against an occupational licensee

responsible pursuant to a rule of the

division for the condition of an animal that

has been impermissibly medicated or drugged

in violation of this section.

* * *

(13) The division shall adopt rules to

implement this section. The rules may

include a classification system for

prohibited substances and a corresponding

penalty schedule for violations.

37. Section 550.0251, Florida Statutes, sets forth the

powers and duties of the Department. Subsection (3) provides:

The Division shall administer this chapter

and regulate the pari-mutuel industry under

this chapter and the rules adopted pursuant

thereto, and;

* * *

(3) The division shall 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. Such rules

must be uniform in their application and

effect, and the duty of exercising this

control and power is made mandatory upon the

division.

38. Section 550.2415, Florida Statutes, deals with the

racing of horses which have been impermissibly medicated or

drugged. Subsection 550.2415(13), Florida Statutes, provides

authority for the Department to adopt rules to implement

Section 550.2415, Florida Statutes. Subsection 550.0251(3),

Florida Statutes, provides authority to implement reasonable

rules for the control, supervision and direction of licensees and

permittees, and for the holding, conducting, and operating of all

races. Subsection 550.2415(2), Florida Statutes, allows the

Department to promulgate a rule which makes a licensee

responsible for the condition of a horse that has been

impermissibly medicated or drugged. The plain reading of

Subsection 550.2415(2), Florida Statutes, makes it clear that the

Department has the authority to hold a trainer responsible for

the condition of the horses which he trains and races if those

horses are raced with any drug, medication, stimulant,

depressant, hypnotic, narcotic, local anesthetic, or drug-masking

agent. Subsection 550.2415(2) does not require that the trainer

be the person who administered or caused to be administered the

drug or medication. Thus, Rule 61D-6.002(1), Florida

Administrative Code, does not exceed the grant of rulemaking

authority granted to the Department and does not enlarge, modify,

or contravene the specific provisions of law which it implements.

39. Petitioners argue that the addition of

Subsection 550.2415(1)(c), Florida Statutes, by the Legislature

in 1992, precludes the Department from holding the trainer

absolutely liable for the drugged or medicated condition of a

horse while racing. Subsection (c) allows the finding of a

prohibited substance in a race-day specimen to be sufficient

evidence to establish, unless contradicted by other evidence,

that the horse was racing with a prohibited substance in its

body. It does not go to the issue of whether the trainer may be

held liable if the horse did race with a prohibited substance in

its body. Thus, the Department has not enlarged, contravened, or

modified provisions of Section 550.2415, Florida Statutes, with

the promulgation of Rule 61D-6.002(1), Florida Administrative

Code.

40. Petitioners argue that the challenged rule is not

supported by competent, substantial evidence. In Chapter 80-270,

Section 1, Laws of Florida, the Legislature made the following

findings:

(1) The practice of drugging or medicating

a racing animal prior to a race:

(a) Corrupts the integrity of the sport of

racing and promotes criminal fraud in such

sport,

(b) Misleads the wagering public and those

desiring to purchase such animal as to the

condition and ability of such animal,

(c) Poses an unreasonable risk of serious

injury or death to the rider of such animal

if a horse and to the riders of other horses

competing in the same race, and

(d) Is cruel and inhumane to the animal

drugged or medicated;

(2) The practice of drugging or medicating

a racing animal prior to a race adversely

affects the interests of the state; and

(3) Criminal penalties and other sanctions

are necessary to prevent and eliminate such

practices.

41. In Division of Pari-mutuel Wagering v. Cable , 362 So.

2d 1350 (Fla. 1978), the Florida Supreme Court upheld rules

imposing strict liability on horse trainers for compliance with

applicable regulations. The Court stated:

On review of these more recent authorities,

we are now persuaded that Florida should

align itself with the well-reasoned majority

view. To protect the integrity of this

unique industry, it is really immaterial

whether "guilt" should be ascribed either

directly or indirectly to the trainer. The

rules were designed, and reasonably so, to

condition the grant of a trainer's license on

the trainer's acceptance of an absolute duty

to ensure compliance with reasonable

regulation governing the areas over which the

trainer has responsibility. Whether a

violation occurs as a result of the personal

acts of the trainer, of persons under his

supervision, or even of unknown third

parties, the condition of the licensure has

been violated by the failure to provide

adequate control, and the consequence of the

default is possible of the trainer's license

or fine. We have no doubt that a rule which

both conditions a license and establishes

with specificity reasonable precautionary

duties within the competence of the licensee

to perform is both reasonable and

constitutional.

Id. at 1354-55.

42. In Solimena v. Department of Business and Professional

Regulation , 402 So. 2d 1240 (Fla. 1st DCA 1981), the court upheld

the validity of Rules 7E-1.18(3) and 7E-1.06(11)(a), Florida

Administrative Code, finding that Subsection 550.02(3), Florida

Statutes (1977), constituted a valid delegation of authority to

the agency. Rule 7E-1.18(3), Florida Administrative Code,

provided:

The trainer shall be responsible for, and be

the insuror [sic] of the condition of the

horses he entersainers are presumed to

know the rules of the Division.

43. Rule 7E-1.06(11)(a), Florida Administrative Code,

provided:

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, internally or externally, to a

horse before a race, such stewards shall

impose such punishment and take such other

action as they 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 any such medication, such

finding shall constitute prima facie evidence

that such horse raced with medication in his

system.

44. In Solimena , the court found that Rules 7E-1.18(3) and

7E-1.06(11)(a), Florida Administrative Code, reflected the intent

of the Legislature to prevent the use of drugs to influence

racing results.

45. In Chapter 80-270, Laws of Florida, the Legislature

created Section 550.241, Florida Statutes. Subsection

550.241(1), Florida Statutes, is similar to Rule 7E-1.06(11)(a),

Florida Administrative Code, relating to the prohibition of

racing horses who have been impermissibly medicated or drugged.

Additionally, the newly created statute gave the agency the

authority to take disciplinary action against licensees that the

Department makes responsible for the condition of the race

animal. In Subsections 550.241(3)(b) and (c), Florida Statutes,

the Legislature also gave the Department authority to summarily

suspend a licensee who was responsible for the condition of a

horse in which the laboratory reported impermissible substances

in the horse based on a race-day specimen. The licensee would be

given an opportunity for a post-suspension hearing at which the

Department was to produce the laboratory results and the

documentation, which on its face, established the responsibility

of the licensee. The licensee has the burden to prove his lack

of responsibility. It should be noted that the legislature did

not require the Department establish that the licensee had

knowledge of the drugging of the animal, but required the

Department to establish that the licensee was the one responsible

for the horse.

46. Given the purpose of the legislation regarding the

drugging and medicating of race horse and the difficulty of

establishing who actually administered the prohibited substance,

Rule 61D-6.002(1), Florida Administrative Code, is neither

arbitrary or capricious and is supported by competent substantial

evidence.

47. In Solimena , supra , the court stated that when the

Legislature is dealing with police power and occupations which

are practiced by privilege rather than right and which are

potentially injurious to the public welfare, a specific standard

may not be expressed and the standard of reasonableness is

applied. Subsection 550.02(3), Florida Statutes, allows the

Department to promulgate reasonable rules for the direction,

supervision and control of licensees. Thus, the standard by

which Rule 61D-6.002(1), Florida Administrative Code, is to be

reviewed is a standard of reasonableness. Rule 61D-6.002(1),

Florida Administrative Code, is not vague, is reasonable, and

does not vest unbridled discretion in the Department.

48. Rule 61D-6.002(1), Florida Administrative Code, is a

valid exercise of delegated legislative authority.

ORDER

Based on the foregoing Findings of Fact and Conclusions of

Law, it is ORDERED Petitioners have failed to establish that

Rule 61D-6.002(1), Florida Administrative Code is an invalid

exercise of delegated legislative authority and their petition is

hereby dismissed.

DONE AND ORDERED this 4th day of January, 2001, in

Tallahassee, Leon County, Florida.

___________________________________

SUSAN B. KIRKLAND

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 4th day of January, 2001.

COPIES FURNISHED:

Cynthia S. Tunnicliff, Esquire

Martha J. Edenfield, Esquire

Pennington, Moore, Wilkinson,

Bell & Dunbar, P.A.

Post Office Box 10095

Tallahassee, Florida 32302-2095

Joseph M. Helton, Jr., Esquire

Michael M. Mills, Esquire

Department of Business and

Professional Regulation,

Division of Pari-Mutuel Wagering

1940 North Monroe Street

Tallahassee, Florida 32399-2202

Dr. Paul Kirsch, Director

Division of Pari-Mutuel Wagering

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-0792

Barbara D. Auger, General Counsel

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-0792

Carroll Webb

Executive Director and General Counsel

Joint Administrative Procedures Committee

Holland Building, Room 120

Tallahassee, Florida 32399-1300

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final Order is entitled

to judicial review pursuant to Section 120.68, Florida Statutes.

Review proceedings are governed by the Florida Rules of Appellate

Procedure. Such proceedings are commenced by filing one copy of

a Notice of Appeal with the agency clerk of the Division of

Administrative Hearings and a second copy, accompanied by filing

fees prescribed by law, with the District Court of Appeal, First

District, or with the District Court of Appeal in the appellate

district where the party resides. The Notice of Appeal must be

filed within 30 days of rendition of the order to be reviewed.