18-000915RP Palm Beach Greyhound Kennel Association vs. Department Of Business And Professional Regulation, Division Of Pari-Mutuel Wagering Status: Closed DOAH Final Order on Tuesday, April 23, 2019.

Summary: Petitioner proved that several provisions of proposed rule 61D-6.0052 were invalid exercises of delegated legislative authority. The rule is otherwise valid.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PALM BEACH GREYHOUND KENNEL

ASSOCIATION,

Petitioner,

vs. Case No. 18 - 0915RP

DEPARTMENT OF BUSINESS AND

PROFESSIONAL REGULATION,

DIVISION OF PARI - MUTUEL

WAGERING,

Respondent.

_______________________________ /

FINAL ORDER

A final hearing was conducted in this case on August 8,

2018, by video - teleconference at sites in Tallahassee and West

Palm Beach, Florida, before E. Gary Early, an administrative law

judge with the Division of Ad ministrative Hearings.

APPEARANCES

For Petitioner: Jeremy E. Slusher, Esquire

Michael R. Billings, Esquire

Jennifer York Rosenblum, Esquire

Slusher & Rosenblum, P.A.

324 Datura Street, Suite 324

West Palm Beach, F lorida 33401

For Re spondent: Louis Trombetta, Esquire

Jett Lee Baumann, Esquire

Division of Pari - Mutuel Wagering

Department of Business and

Professional Regulation

2601 Blair Stone Road

Tallahassee, Florida 32399 - 2202

STATEMENT OF THE ISSUE

The issue fo r disposition in this case is whether proposed

Florida Administrative Code R ule 61D - 6.0052 (Proposed Rule) is

an invalid exercise of delegated legislative authority as

defined in section 120.52(8), Florida Statutes.

PRELIMINARY STATEMENT

On February 16, 2018, Petitioner, Palm Beach Greyhound

Kennel Association (Petitioner or PBGKA), filed a Petition for

Administrative Determination of Invalidity of Proposed Rule 61D -

6.0052, F.A.C.

The case was scheduled to be heard on March 23, 2018. On

March 1, 2018, the case was continued and rescheduled to May 11,

2018. On April 17, 2018, the parties jointly requested an

additional continuance to allow for additional discovery. On

April 18, 2018, the motion was granted, the May 11, 2018 hearing

was cancelled, and the parties were advised to provide a status

report by May 25, 2018. On May 24, 2018, the parties requested

that the case be scheduled for final hearing, with August 7,

2018 , being their first available date. On May 25, 2018, the

final hearing was schedu led for August 7, 2018, and subsequently

rescheduled for August 8, 2018.

The parties filed their Joint Pre - hearing Stipulation on

August 7, 2018, in which the parties identified, among other

things, a list of stipulated facts. Those facts have been

in corporated herein.

The final hearing was held on August 8, 2018. Joint

Exhibits 2 through 9, 11, 12, 14, 15, 20 through 23, 36, 37, 40 ,

and 41 were received in evidence.

Petitioner called as its witnesses: Henry Chin, a kennel

owner and director of the PBGKA; A.J. Grant, a kennel owner; and

Dr. Thomas Tobin, who met the standards in section 90.702,

Florida Statutes , to testify as an expert. Petitioner Ó s

Exhibits 1, 10, 13, 16 through 19, 24 through 35, and 38 were

received in evidence.

The Depar tment of Business and Professional Regulation ,

Division of Pari - Mutuel Wagering (Respondent or Division) ,

called as its witnesses: Robert Ehrhardt, director of the

Division; and Arthur Agganis, a kennel owner and president of

PBGKA. RespondentÓs Exhibi ts 1 through 12 were received in

evidence. RespondentÓs Exhibit 7 is the deposition transcript

of Dr. Tobin, PetitionerÓs expert witness; and RespondentÓs

Exhibits 8 through 10 are the deposition transcripts and errata

sheet of Mr. Agganis, PetitionerÓs p arty representative.

The one - volume Transcript of the final hearing was filed on

August 28, 2018. On September 7, 2018, the parties jointly

moved for an extension of time to file proposed final orders.

The motion was granted, and the parties therea fter filed their

P roposed F inal O rders on September 11, 2018, which have been

considered in the preparation of this Final Order.

References to statutes are to Florida Statutes (2018),

unless otherwise noted.

FINDING S OF FACT

1. Petitioner is a Florida fo r - profit corporation

operating at the Palm Beach Kennel Club (PBKC) in West Palm

Beach, Florida. PetitionerÓs members are owners of greyhounds

that are raced at the PBKC. Of the 12 greyhound kennels that

operate at PBKC, nine are current members of Petit ioner.

2. PetitionerÓs members each hold licenses issued by the

Division pursuant to chapter 550 , Florida Statutes . Some of the

PBKC kennel owners are themselves licensed greyhound trainers,

and some employ licensed trainers.

3. PetitionerÓs Articl es of Incorporation establish its

purposes as including the promotion of Ðthe welfare and care of

greyhounds, . . . including, but not limited to, . . . promoting

fair regulatory treatment of the greyhound industry.Ñ

4. The Division is the state agency charged with

regulating pari - mutuel wagering activities in Florida pursuant

to chapter 550.

The Proposed Rule

5. The full text of the P roposed R ule is as follows:

61D - 6.0052 Procedures for Collecting Samples

from Racing Greyhounds

(1) Designating G reyhounds for Sampling:

(a) Any greyhound the judges, division,

track veterinarian, or authorized division

representatives designate, shall be sent

immediately prior to the race to the

detention enclosure for examination by an

authorized representative o f the division

for the taking of urine and/or other such

samples as shall be directed for the

monitoring and detection of both permissible

and impermissible substances.

(b) When possible, a sample should be

collected from two (2) greyhounds per race.

Whe n possible, greyhounds from more than one

participating kennel should be sampled per

performance. Additional greyhounds may also

be sampled if designated by the judges,

division, track veterinarian, or authorized

division representatives.

(2) Collection of Samples:

(a) Urine and/or other samples shall be

collected by an authorized representative of

the division in an unused sample container

supplied by the division, or its agent.

Authorized representatives of the division

shall wear unused gloves suppl ied by the

division, or its agent, during sample

collection until the sample container is

sealed with its lid.

(b) Authorized representatives of the

division shall use a sample card with a

unique identifier to record the date of

sample collection and the identification

tattoo, microchip or name of the greyhound

sampled or attempted to be sampled.

(c) The owner, trainer of record, or other

authorized person is permitted to witness

when the sample is collected from their

greyhound. Failure of an owner, tr ainer of

record or other authorized person to witness

and/or sign the sample card shall not

preclude the division from proceeding with

sample analysis.

(3) Sealing and Labeling of Samples:

(a) As soon as possible after a sample is

collected, the sample container shall be

sealed with its lid.

(b) The sample container shall be labeled

with the sample cardÓs unique identifier.

(c) Evidence tape shall be placed over both

the sample container and lid on at least two

sides.

(d) The authorized representa tive of the

division that sealed the sample container

shall initial the evidence tape on the

sample container.

(4) Storing and Shipping of Samples:

(a) The samples shall be stored in a

lockable freezer or container in a

restricted area accessible by on ly

authorized representatives of the division

until the time of shipment.

(b) Upon the completion of packing the

samples for shipment, the shipping container

shall be locked. All appropriate forms for

shipment shall be completed and included

with the sh ipment to ensure correct delivery

and identification of the contents.

(c) The samples shall be shipped to the

laboratory under contract with the division

for testing of the samples via the

laboratoryÓs contracted common carrier.

(5) Authority of the Di vision:

(a) The division investigator or other

authorized representative is authorized to

confiscate any legend or proprietary drugs,

medications, unlabeled medication,

medication with altered labels, medicinal

compounds (natural or synthetic) or other

m aterials which are found on the grounds of

greyhound race tracks and kennel compounds

or in the possession of any person

participating in or connected with greyhound

racing, including veterinarians and

trainers, and which are suspected of

containing improp er legend or proprietary

drugs, medications, medicinal compounds

(natural or synthetic) or other materials

which are illegal or impermissible under

these rules. Such legend or proprietary

drugs, medications, unlabeled medication,

medication with altered l abels, medicinal

compounds (natural or synthetic) or other

materials shall be delivered to the

laboratory under contract with the division

for analysis.

(b) The division is authorized to

confiscate any evidence that an illegal or

impermissible legend or proprietary drug,

medication, or medicinal compound (natural

or synthetic) may have been administered to

a racing animal.

(c) It is a violation of these rules for a

licensee to threaten to interfere, actually

interfere or prevent the taking of urine,

blo od, saliva or other samples authorized by

Chapter 550, F.S. For such a violation, the

division may impose any disciplinary

penalties authorized by Chapter 550, F.S.,

or the rules promulgated thereunder.

Rulemaking Authority 120.80(4)(a),

550.0251(3), 550 .2415(12), (13) FS.

Law Implemented 120.80(4)(a), 550.0251,

550.1155, 550.2415 FS. History Î New ________.

Issues for Disposition

6. Section 120.56(2)(a) provides that Ðthe agency has the

burden to prove by a preponderance of the evidence that the

propos ed rule is not an invalid exercise of delegated

legislative authority as to the objections raised.Ñ

7. The Ðobjections raisedÑ as identified in the Joint Pre -

hearing Stipulation are those that remain for disposition in

this proceeding, with issues not p reserved having been waived.

See Palm Beach Polo Holdings, Inc. v. Broward Marine, Inc. , 174

So. 3d 1037 (Fla. 4th DCA 2015).

8. As set forth in the recitation of ÐPetitionerÓs

Position,Ñ the following issues are at issue:

a. The proposed rule refers t o urine and/or

other samples in its text, yet only contains

procedures for urine collection;

b. The proposed rule fails to adequately

detail necessary chain of custody procedures

for sampling racing greyhounds;

c. The proposed rule ignores basic

scie ntific principles as to contamination;

d. The proposed rule ignores basic

scientific principles as to the timing of

sampling;

e. The proposed rule ignores basic

scientific principles as to the temperature

of a sample;

f. The proposed rule fails to p rovide

trainers and owners of an opportunity to

witness their greyhounds' sampling;

g. The proposed rule grants too much

discretion to Respondent;

h. Respondent failed to follow the

applicable rulemaking procedures set forth

in chapter 120;

i. The p roposed rule does not limit its

application to urine;

Stipulated Facts

The following facts were stipulated by the parties:

9. It is possible that a racing greyhound could become

exposed to environmental substances during the time between the

trainer relinquishing it at the track and the sampling.

10. The reason that racing greyhounds are tattooed is for

identification purposes.

11. It is important to prevent contamination of a racing

greyhound's sample.

12. It is important to preserve the integr ity of a racing

greyhound's sample.

13. The Proposed Rule does not require racing greyhound

samples to be stored frozen. However, subsection (4)(a) of the

Proposed Rule requires that the samples are stored in a lockable

freezer or container.

14. The P roposed Rule does not require that the racing

greyhound samples be kept refrigerated. However, subsection

(4)(a) of the Proposed Rule requires that samples be stored in a

lockable freezer or container.

15. The Proposed Rule does not contain any provisio ns for

the drawing of blood, "other specimens," or other fluids from the

racing greyhound.

16. The Proposed Rule does not describe how all the

individuals involved in the chain of custody of a racing

greyhound sample record their involvement.

17. The P roposed Rule contains a section entitled "Sealing

and Labeling of Samples."

18. The Proposed Rule does not describe the chain of

custody for the taking of "other specimens" from the racing

greyhound.

19. The Proposed Rule does not describe the chain of

custody procedures associated with materials confiscated under

paragraph five of the Proposed Rule.

20. Respondent published its Notice of Development of

Rulemaking for Proposed Rule 61D - 6.0052, F.A.C. (Notice of

Development) , on January 22, 2018.

21. Respondent published its Notice of Proposed Rule 61D -

6.0052, F.A.C. (Notice of Proposed Rule) , on January 29, 2018.

22. Respondent's Notice of Proposed Rule 61D - 6.0052,

F.A.C., indicated it was approved by the agency head, Jonathan

Zachem, on January 26 , 2018, a mere [four] days after publication

of Respondent's Notice of Development of Rulemaking for Proposed

Rule 61D - 6.0052, F.A.C.

23. On February 6, 2018, a rule development workshop was

requested for Proposed Rule 61D - 6.0052, F.A.C.

24. Respondent did not hold a rule development workshop for

Proposed Rule 61D - 6.0052, F.A.C.

25. Respondent did not provide an explanation in writing as

to why a workshop was unnecessary for Proposed Rule 61D - 6.0052,

F.A.C., other than Bryan A. Barber's letter of Febr uary 13, 2018.

Facts Adduced at Hearing

26. The purpose and effect of the Notice of Development

was Ðto further clarify and describe the procedures performed by

the Division in collecting samples from greyhounds and to create

a rule specific to the greyh ound sample collection .

27. The Notice of Proposed Rule did not contain a

statement of estimated regulatory costs imposed on small

businesses.

28. On February 6, 2018, Petitioner, through its

representative, sent a letter to the Division requesting a r ule

development workshop. On February 13, 2018, the Division not ed

that the Ðrule development phaseÑ ended with the publication of

the Notice of Proposed Rule, and the request for a workshop was,

therefore, untimely.

29. There is no evidence that anyone provided the Division

with information regarding a statement of estimated regulatory

costs, or provided the Division with a proposal for a lower cost

regulatory alternative. No one requested that a public hearing

be held on the P roposed R ule.

30. Rac ing greyhounds are delivered to the track by their

owners or trainers prior to the commencement of their race card.

Greyhounds racing during the matinee card are delivered at one

time, and greyhounds racing during the evening card are

delivered at a later time.

31. The greyhounds are all weighed in about 60 to 90

minutes prior to the first race, regardless of the race in which

a particular greyhound is scheduled to appear. After weigh - in,

the greyhounds are handed over to the Ðlead - outs,Ñ who are trac k

employees, and taken to the ginny pit. Each greyhound is then

placed in a numbered cage designating its race and position, and

held there until its race is scheduled to commence. From the

time an animal is given over to the lead - outs until its race is

over, they are out of the control and sight of the owners and

trainers. For greyhounds racing in the last race of a card,

that period can be well in excess of four hours.

32. Prior to each race, the race judge, Division, track

veterinarian, or Ðauthor ized division representativeÑ designates

the greyhounds to be tested for that race. The process was not

described, other than as described in the rule that Ð[w]hen

possible, a sample should be collected from two (2) greyhounds

per race. When possible, gr eyhounds from more than one

participating kennel should be sampled per performance.Ñ

Mr. Ehrhardt testified that Ðideally itÓs blind and that you

just pick one at random,Ñ and that dogs from separate kennels be

selected Ðto ensure that no one is singled o ut.Ñ However, the

Proposed Rule contains no criteria for the selection of an

animal other than its being in the race. Even a requirement

that the selection be random, and a mandatory selection of

different kennels be made Ðwhen possible,Ñ is sufficient t o

preclude an unfettered exercise of discretion in the selection

of the greyhound. As it is, the selection of both dogs and

kennels is completely within the discretion of the Division.

33. Upon selection, the greyhounds are led to an open area

to reliev e themselves. At the Orange Park Kennel Club, the area

is a restricted access grass and sand area surrounded by a chain

link fence. There was no evidence as to other tracks, but there

is little to suggest that the areas at other tracks are

dissimilar.

34. The process of collecting the sample involves watching

the dog for a sign that it is ready to urinate, and then holding

a plastic cup at the end of a stick, an Ðarmed doohickeyÑ as

described by Mr. Ehrhardt, under the dog until it produces a

sample. The sampler wears fresh gloves and uses an unused cup.

When the sample is collected, the sampler places the lid on the

container, labels the container, and places evidence tape Ðover

both the sample container and lid on at least two sides.Ñ

35. After t he sample cup is capped, labeled, and sealed,

it is placed in a Ðlockable freezer or container in a restricted

area.Ñ Mr. Ehrhardt indicated that it was the DivisionÓs intent

that the freezer or container should be locked at all times that

it is not being accessed to place samples in it, and that it

should not be left unlocked. However, the plain language of the

rule suggests otherwise. The lockable container is to be in a

restricted area, but is only required to be locked Ð[u]pon

completion of the packi ng of the samples for shipment.Ñ

36. Dr. Tobin testified that samples must be kept frozen

or, at a minimum, refrigerated. Mr. Ehrhardt testified that

once a sample is collected, it goes Ðstraight to the freezer,Ñ

suggesting that freezing is the preferr ed method of storage.

Failure to do so can result in degradation of the sample,

bacterial growth, and, in certain cases, breakdown of substances

into metabolites that would more closely mimic a prohibited

substance in a dogÓs urine.

37. Petitioner ar gued that the timing of the sampling is

problematic for another reason, other than the holding period

for the greyhounds. Many owners and trainers have more than one

dog racing during a card. The ginny pit and the finish line are

at different ends of the track. Therefore, a trainer or owner

may be collecting their dog(s) at the conclusion of a race at

the same time the pre - race sample is being taken for the next

race, making observation of the sampling difficult from a

practical perspective. However, bo th Mr. Agganis and Mr. Chin

acknowledged that there was nothing to directly prevent an owner

or trainer from observing the sampling. Furthermore, there is

nothing to prevent the owner or trainer, or even PetitionerÓs

members collectively, from having an e mployee or agent witness

the sampling on their behalf, since the rule allows Ð[t] he

owner, trainer of record, or other authorized personÑ to witness

the sampling.

38. In no fewer than 10 places in the P roposed R ule,

actions are authorized to be taken by an Ðaut horized

representativeÑ of the D ivision, or an Ðother authorized

person.Ñ The Proposed Rule does not identify who those

representatives or persons might be, or how they may come to be

authorized.

39. Mr. Ehrhardt testified that the purpose of the less

definitive description was Ðto figure out a way to make the rule

flexible,Ñ to meet the possibility that a Ðjob title is going to

change.Ñ

40. During Mr. EhrhardtÓs visit to the Orange Park

greyhound racing facility, he was allowed into the restric ted

ginny pit area by Ðauthorized personnel from the division,Ñ who

he described as Ðveterinarian assistants, chief inspector,

investigators, people like that.Ñ Petitioner objected to the

lack of specificity because it provided no assurances that these

in dividuals are competent, or held to any particular standard.

CONCLUSIONS OF LAW

41. The Division of Administrative Hearings has

jurisdiction of the subject matter and the parties to this

proceeding. §§ 120.569 and 120.57(1), Fla. Stat.

Standing

42. Section 120.56(1)(a) provides that Ðany person

substantially affected by . . . a proposed rule may seek an

administrative determination of the invalidity of the rule on

the ground that the rule is an invalid exercise of delegated

legislative authority.Ñ

4 3. In order to demonstrate that a person is

Ðsubstantially affected,Ñ that person must establish Ða real and

sufficiently immediate injury in factÑ and that the interest

involved is within the Ðzone of interest to be protected or

regulated.Ñ See Ward v. B d. of Trs. of the Int. Impust

Fund , 651 So. 2d 1236, 1237 (Fla. 4th DCA 1995); Coal. of Mental

Health ProfÓls v. DepÓt of ProfÓl Reg. , 546 So. 2d 27 (Fla. 1st

DCA 1989).

44. The PBGKA is an association that consists of nine

dues - paying kennel owners who own and race greyhounds at the

Palm Beach Kennel Club. As such, their racing greyhounds, and

trainers under their employ, are subject to the rules regarding

the collection, storage, and shipment of greyhound urine samples

designed to detect the presen ce of impermissible substances. If

allowed to become effective, PBGKA and its members would be

governed by the P roposed R ule and therefore each is

substantially affected in a manner and degree sufficient to

confer administrative standing in this case. Se e, e.g. , Abbott

Labs. v. Mylan Pharms. , 15 So. 3d 642, 651 n.2 (Fla. 1st DCA

2009); Dep't of Prof'1 Reg., Bd. of Dentistry v. Fla. Dental

Hygienist Ass'n , 612 So. 2d 646, 651 (Fla. 1st DCA 1993); see

also Cole Vision Corp. v. Dep't of Bus. & Prof'l Reg. , 6 88

So. 2d 404, 407 (Fla. 1st DCA 1997)(recognizing that Ða less

demanding standard applies in a rule challenge proceeding than

in an action at law, and that the standard differs from the

Òsubstantial interestÓ standard of a licensure proceedingÑ).

45. As sociations have standing to bring a rule challenge

when:

a substantial number of [the associationÓs]

members, although not necessarily a

majority, are Ðsubstantially affectedÑ by

the challenged rule. Further, the subject

matter of the rule must be within the

associationÓs general scope of interest and

activity, and the relief requested must be

the type appropriate for a trade association

to receive on behalf of its members.

Fl a. Home Builders AssnÓ v. DepÓt of Labor and Emp. Sec. , 412

So. 2d 351, 353 - 54 (Fla. 1982); see also NAACP, Inc. v. Bd. of

Regents , 863 So. 2d 294, 298 (Fla. 2003).

46. Section 550.2415(1)(a) provides in part:

The racing of any animal with any drug,

medication, stimulant, depressant, hypnotic,

local anesthetic, or drug - masking a gent is

prohibited. It is a violation of this

section for any 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 pos itive test

for such substance based on samples taken

from the racing animal immediately prior to

or immediately after the racing of the

animal.

47. Section 550.2415(1)(c) provides that Ð[t]he finding of

a prohibited substance in a race - day specimen con stitutes prima

facie evidence that the substance was administered and was

carried in the body of the animal while participating in the

race.Ñ The statute also provides that when a racing animal has

been impermissibly medicated or drugged, action may be ta ken

"against an occupational licensee responsible pursuant to rule of

the division" for the animalÓs condition. £ 550.2415(2), Fla.

Stat. Consistent with this statute, Respondent has adopted

rule 61D - 6.002, the Ðabsolute insurer rule,Ñ making trainers of

racing animals, including greyhounds, strictly responsible for

the presence of a prohibited substance in the urine of the

animal.

48. PetitionerÓs members are either licensed trainers ,

subject themselves to the absolute insurer rule, or kennel

owners wh o employ trainers upon whom the kennel ownersÓ

livelihood depends. Thus, Petitioner and its members are

substantially affected by the rule establishing the accuracy of

urine collection measures for determining whether a greyhound

has raced with an impermi ssible substance in its system.

49. Based on the record of this proceeding, Petitioner

meets the standards for associational standing.

Burden of Proof

50. In a challenge to a proposed agency rule, the

petitioner has the burden of Ðgoing forward,Ñ a nd the agency

then has the burden of proving by a preponderance of the

evidence that the proposed rule is not an invalid exercise of

delegated legislative authority as to the objections raised.

§ 120.56(2)(a), Fla. Stat. Petitioner met its burden of Ðgoi ng

forwardÑ in this case.

51. When a substantially affected person seeks a

determination of the invalidity of a proposed rule pursuant to

section 120.56(2), the proposed rule is not presumed to be valid

or invalid. § 120.56(2)(c), Fla. Stat.

Rulema king Standards

52. Section 120.52(8) defines an Ðinvalid exercise of

delegated legislative authority.Ñ The provisions at issue in

this proceeding are as follows:

(8) ÐInvalid exercise of delegated

legislative authorityÑ means action that

goes beyond t he 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 rul e 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. A

rule is arbitrary if it is not supported by

logic or the necessary facts; a rule is

capricious if it is adopted without thought

or reason or is irrational. . . .

53. Petitioner did not allege that the Proposed R ule would

result in excessive regulatory costs (section 120.52(8)(f)), or

that the Proposed Rule exceeded the DivisionÓs grant of

rulemaking authority or failed to implement or interpret the

specific powers and duties granted by the enabling statute as

set forth in the Ðflush leftÑ paragraph of section 120.52(8).

54. The Division's interpretation of chapter 550, a

statute it is charged with administering, is entitled to Ðgreat

deference unless there is clear error or conflict with the

intent of the statute.Ñ Lakeland Reg'l Med. Ctr., Inc. v. Ag.

for Health Care Admin. , 917 So. 2d 1024, 1029 (Fla. 1st DCA

2006); see also Level 3 CommcÓns, LLC v. Jacobs , 841 So. 2d 447,

450 (Fla. 2003); Verizon Fla., Inc. v. Jacobs , 810 So. 2d 906,

908 (Fla. 2002); F la. Hosp. (Adventist Health) v. Ag. for Health

Care Admin. , 823 So. 2d 844, 847 (Fla. 1st DCA 2002). The basis

for such deference has been described as follows:

Agencies generally have more expertise in a

specific area they are charged with

overseeing. T hus, in deferring to an

agency's interpretation, courts benefit from

the agency's technical and/or practical

experience in its field.

Rizov v. Bd. of ProfÓl EngÓrs , 979 So. 2d 979 (Fla. 3d DCA

2008) ; see also Avatar Dev. Corp. v. State , 723 So. 2d 199, 20 7

(Fla. 1998) (ÐUnder the complexities of our modern system of

government, the Legislature has recognized that [the Department

of Environmental Protection], as a specialized administrative

body, is in the best position to establish appropriate standards

and conditions.Ñ).

55. Ð[I]t is well established that the legislature has

broad discretion in regulating and controlling pari - mutuel

wagering and gambling under its police powers.Ñ Div. of Pari -

Mutuel Wagering , Dep't of Bus. Reg. v. Fla. Horse Council, Inc. ,

464 So. 2d 128, 130 (Fla. 1985). Thus, the authority of the

L egislature to empower the Division to adopt pari - mutuel rules

to implement and establish standards for Ð holding, conducting,

and operating of all racetracks, race meets, and races held in

this state,Ñ including the collection of race - day specimens for

the detection impermissible medications or substances, is

recognized by the undersigned.

Statutory Authority for the Proposed Rules

56. The statutory provisions cited by the Division as

rul emaking authority for the Proposed Rule are sections

120.80(4)(a), 550.0251(3), and 550.2415(12) and (13).

57. Section 120.80(4)(a), entitled ÐExceptions and special

requirements; agencies,Ñ provides that:

(4) DEPARTMENT OF BUSINESS AND PROFESSIONAL

REGULATION. Ï

(a) Business regulation. Ï The Division of

Pari - mutuel Wagering is exempt from the

hearing and notice requirements of ss.

120.569 and 120.57(1)(a), but only for

stewards, judges, and boards of judges wh en

the hearing is to be held for the purpose of

the imposition of fines or suspensions as

provided by rules of the Division of Pari -

mutuel Wagering, but not for revocations,

and only upon violations of subparagraphs

1. - 6. The Division of Pari - mutuel Wager ing

shall adopt rules establishing alternative

procedures, including a hearing upon

reasonable notice, for the following

violations:

* * *

2. Application and usage of drugs and

medication to horses, greyhounds, and jai

alai players in violation of chapter 550.

3. Maintaining or possessing any device

which could be used for the injection or

other infusion of a prohibited drug to

horses, greyh ounds, and jai alai players in

violation of chapter 550.

58. Section 550.0251(3), entitled Ð[t]he powers and duties

of the Division of Pari - mutuel Wagering of the Department of

Business and Professional Regulation,Ñ provides that:

The division shall ad minister 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, an d

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 th e

division.

59. Sections 550.2415(12) and (13) provide that:

(12) The division shall adopt rules to

implement this section.

(13) The division may implement by rule

medication levels for racing greyhounds

recommended by the University of Florida

College of Veterinary Medicine developed

pursuant to an agreement between the

Division of Pari - mutuel Wagering and the

University of Florida College of Veterinary

Medicine. The University of Florida College

of Veterinary Medicine may provide written

notification to the division that it has

completed research or review on a par ticular

drug pursuant to the agreement and when the

College of Veterinary Medicine has completed

a final report of its findings, conclusions,

and recommendations to the division.

60. The statutory provisions cited by the Division as the

law implemented by the Proposed Rule are sections 120.80(4)(a),

550.0251, 550.1155, and 550.2415. Having reviewed the statutes,

the undersigned concludes that not all of the subsections of the

identified statutes are implemented by the Proposed Rule . The

applicable prov isions are identified herein.

61. The applicable provisions of Section 120.80(4)(a) as

cited above.

62. The applicable provision of section 550.0251

implemented by the Proposed Rule , in addition to section

550.0251(3) cited above, is section 550.0251(1 1), which provides

that Ð[t]he division shall supervise and regulate the welfare of

racing animals at pari - mutuel facilities.Ñ

63. Section 550.1155 generally establishes the authority

of stewards at a dog track to impose a civil penalty against an

occupa tional licensee for violation of the pari - mutuel laws or

rules of the Division, and the disposition of such fines. That

section has little direct applicability to the Proposed Rule .

64. The following subsections of s ection 550.2415 appear

to be implemen ted by the Proposed Rule :

(1)(a) The racing of an animal that has been

impermissibly medicated or determined to have

a prohibited substance present is prohibited.

It is a violation of this section for a

person to impermissibly medicate an animal or

for a n animal to have a prohibited substance

present resulting in a positive test for such

medications or substances based on samples

taken from the animal before or immediately

after the racing of that animal . . . .

(b) It is a violation of this section for a

race - day specimen to contain a level of a

naturally occurring substance which exceeds

normal physiological concentrations . . . .

(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.

* * *

(3)(b) The division, notwithstanding

chapter 120, may summarily suspend the

license of an occupational licensee

responsible under this section or division

rul e for the condition of a race animal if

the division laboratory reports the presence

of a prohibited substance in the animal or

its blood, urine, saliva, or any other bodily

fluid, either before a race in which the

animal is entered or after a race the ani mal

has run.

(c) If an occupational licensee is summarily

suspended under this section, the division

shall offer the licensee a prompt

postsuspension hearing within 72 hours, at

which the division shall produce the

laboratory report and documentation which, on

its face, establishes the responsibility of

the occupational licensee. Upon production

of the documentation, the occupational

licensee has the burden of proving his or her

lack of responsibility.

* * *

(5) The division shall implement a split -

sample procedure f or testing animals under

this section.

(a) The division shall notify the owner or

trainer, the stewards, and the appropriate

horsemenÓs association of all drug test

results. If a drug test result is positive,

and upon request by the affected trainer or

owner of the animal from which the sample was

obtained, the division shall send the split

sample to an approved independent laboratory

for analysis. The division shall establish

standards and rules for uniform enforcement

and shall maintain a list of at l east five

approved independent laboratories for an

owner or trainer to select from if a drug

test result is positive.

(b) If the division laboratoryÓs findings

are not confirmed by the independent

laboratory, no further administrative or

disciplinary act ion under this section may be

pursued.

(c) If the independent laboratory confirms

the division laboratoryÓs positive result,

the division may commence administrative

proceedings as prescribed in this chapter and

consistent with chapter 120. For purposes of

this subsection, the department shall in good

faith attempt to obtain a sufficient quantity

of the test fluid to allow both a primary

test and a secondary test to be made.

(d) For the testing of a racing greyhound,

if there is an insufficient quantity of the

secondary (split) sample for confirmation of

the division laboratoryÓs positive result,

the division may commence administrative

proceedings as prescribed in this chapter and

consistent with chapter 120.

* * *

(6)(e) The division may inspect any area at

a pari - mutuel facility where racing animals

are raced, trained, housed, or maintained,

including any areas where food, medications,

or other supplies are kept, to ensure the

humane treatment of racing animals and

compliance with this chapter and t he rules of

the division.

* * *

(12) The division shall adopt rules to

implement this section.

65. Based on the totality of the evidence in this

proceeding, by its publication and intent to adopt the Proposed

Rule , the Division has not exceeded its grant of rulemaking

authority, nor does the Proposed Rule enlarge, modify, or

contravene the specific provisions of law implemented.

Applicable Rulemaking Procedures

66. Petitioner has alleged that the failure of the

Division to hold a rule workshop constituted a material failure

to follow th e applicable rulemaking procedures.

67. Section 120.54(2)(c) provides, in pertinent part,

that:

An agency may hold public workshops for

purposes of rule development. An agency

must hold public workshops, including

workshops in various regions of the sta te or

the agencyÓs service area, for purposes of

rule development if requested in writing by

any affected person, unless the agency head

explains in writing why a workshop is

unnecessary. The explanation is not final

agency action subject to review pursua nt to

ss. 120.569 and 120.57. The failure to

provide the explanation when required may be

a material error in procedure pursuant to

s. 120.56(1)(c).

68. The reason set forth by the Division for declining to

hold a workshop was valid and legitimate. Th ere is no

established statutory period that the rule development phase of

rulemaking must remain open. By the time a workshop was

requested on February 6, 2018, the rule development phase of the

rulemaking set forth in section 120.54(2), though temporally

abbreviated, was complete. The rule adoption process set forth

in section 120.54(3) had commenced. The Notice of Proposed Rule

had been published on January 29, 2018, and the ÐclockÑ was

ticking. Thus, the explanation provided by the Division was

consi stent with the procedures established in section 120.54.

69. For the reason set forth herein, the DivisionÓs

decision to decline to hold a workshop was not a material

failure to follow the applicable rulemaking procedures or

requirements set forth in cha pter 120, and thus was not an

invalid exercise of delegated legislative authority pursuant to

section 120.52(8)(a).

Authorized Representatives

70. As set forth in the F indings of F act, the Proposed

Rule allows certain actions to be taken by authorized

r epresentatives of the Division. Mr. EhrhardtÓs testimony as to

the reason for that language is accepted. It is not

unreasonable to conclude that Division personnel, not specified

by job title, may be called upon in exigent circumstances to

assist in the sampling. Furthermore, representatives involved

in the sampling will be identified in the chain of custody.

Thus, the DivisionÓs decision to allow participation by its

Ðauthorized representativesÑ does not enlarge, modify, or

contravene the specific prov isions of law implemented; is not

vague; does not fail to establish adequate standards for agency

decisions, or vest unbridled discretion in the agency; and is

not arbitrary or capricious.

Timing of Sampling

71. It is clear from the totality of the compe tent,

substantial, and credible evidence adduced in this proceeding,

that a -- if not the -- primary concern of Petitioner is that

greyhounds are not tested at the time they are delivered by the

kennel to the track, but rather are held to be tested

immedia tely before a race, which can be hours after control over

the animal is surrendered by the kennel owner or trainer to

track employees. Given the consequences of the Ðabsolute

insurerÑ rule, having greyhounds tested while all affected

parties are present, and before the stipulated Ðexpos[ure] to

environmental substances during the time between the trainer

relinquishing it at the track and the samplingÑ could occur ,

makes sense. However, the question is not whether the sampling

regime n implemented by the D ivision is the best alternative.

Rather, review is limited to whether the decision of the

Division is an invalid exercise of delegated legislative

authority.

72. Section 550.2415 (1)(a) provides, in pertinent part,

that Ð[i]t is a violation of this secti on for a person to

impermissibly medicate an animal or for an animal to have a

prohibited substance present resulting in a positive test for

such medications or substances based on samples taken from the

animal before or immediately after the racing of tha t animal . Ñ

(emphasis added). The proposed sampling procedure squarely meets

that legislative charge. The fact that the L egislature allows

post - race sampling as a sampling option confirms that time in the

ginny pit was not an unforeseen or unauthorized c onsequence of

the sampling program.

73. Based on the foregoing, the Proposed Rule Ós

requirement that racing greyhounds be sampled prior to their

scheduled races does not enlarge, modify, or contravene the

specific provisions of law implemented; is not va gue; does not

fail to establish adequate standards for agency decisions, or

vest unbridled discretion in the agency; and is not arbitrary or

capricious.

Witnessing Sampling

74. As set forth in the F indings of F act, Petitioner

argues that the practicali ties of race - day activities hinder the

ability of owners and trainers to witness the collection of

race - day specimens.

75. The Proposed Rule provides that Ð[t]he owner, trainer

of record, or other authorized person is permitted to witness

when the samp le is collected from their greyhound.Ñ Mr. Agganis

testified as to the ease of observation if sampling were

performed at the time of delivery of greyhounds to the track.

Both he and Mr. Chin expressed concern that testing a greyhound

immediately before i ts race made it impractical for a trainer or

kennel owner to witness the collection of the sample. However,

both acknowledged that there is nothing in the rule that

prevents an owner or trainer, or someone authorized to observe

on their behalf, from obser v ing the sampling.

76. Based on the foregoing, the Proposed Rule Ós provision

for allowing owners, trainers, or persons acting on their behalf

to witness the collection of race - day specimens does not

enlarge, modify, or contravene the specific provision s of law

implemented; is not vague; does not fail to establish adequate

standards for agency decisions, or vest unbridled discretion in

the agency; and is not arbitrary or capricious.

Selection of Greyhounds and Kennels

77. As set forth in the F indings of F act, the rule

establishes no standards to guide the DivisionÓs exercise of

discretion in selecting the greyhounds for sampling. Although

it was Mr. EhrhardtÓs preference that the selection be random,

and that greyhounds from different kennels be selec ted, the

rule, as written, does not require either. Thus, that provision

of p roposed r ule 61D - 6.0052(1)(b) regarding the selection of

greyhounds for race - day sampling fails to establish adequate

standards for the DivisionÓs decisions, or vests unbridled

d iscretion in the Division.

Identification of Greyhounds

78. The Proposed Rule provides that the sample card

include a record of Ðthe identification tattoo, microchip or

name of the greyhound sampled or attempted to be sampled.Ñ

Petitioner argues that ra cing greyhounds are not microchipped,

though there is no evidentiary support for that assertion ; that

the rule does not describe how a dogÓs tattoo is to be

identified ; and that the rule does not describe how a

greyhoundÓs name can be found.

79. The Pr oposed Rule provides a reasonable method of

identifying the dogs subject to collection of a race - day

specimen, particularly given the stipulation that Ðracing

greyhounds are tattooed [] for identification purposes.Ñ Thus,

the Proposed Rule provision for i dentifying greyhounds does not

enlarge, modify, or contravene the specific provisions of law

implemented; is not vague; does not fail to establish adequate

standards for agency decisions, or vest unbridled discretion in

the agency; and is not arbitrary or capricious.

Types of Specimens

80. Petitioner argues that the Proposed Rule purports to

address the Ðtaking of urine and/or other samples,Ñ but its

procedures are only applicable to the collection of race - day

specimens of urine, which is the current met hod of sampling

racing greyhounds.

81. Section 550.2415 allows for the suspension of a pari -

mutuel license Ðif the division laboratory reports the presence

of a prohibited substance in the animal or its blood, urine,

saliva, or any other bodily fluid.Ñ The Proposed Rule makes it

a violation of the rule Ðfor a licensee to threaten to

interfere, actually interfere or prevent the taking of urine,

blood, saliva or other samples authorized by Chapter 550, F.S.Ñ

82. It is not disputed that the Proposed Rule is intended

to, and does, establish procedures for the collection of urine

from racing greyhounds. It was stipulated that Ð[t]he Proposed

Rule does not contain any provisions for the drawing of blood,

Òother specimens,Ó or other fluids from the racing gr eyhound.Ñ

The fact that the Proposed Rule incidentally (and unnecessarily)

refers to Ðother samplesÑ does not enlarge, modify, or

contravene the specific provisions of law implemented; does not

make the Proposed Rule vague; does not fail to establish

adeq uate standards for agency decisions, or vest unbridled

discretion in the agency; and is not arbitrary or capricious.

If, at some point in the future, the Division determines that

race - day specimens of blood, saliva, or other bodily fluids may

be collected using the procedures established in the Proposed

Rule , there is nothing to prevent that. If, as is more likely,

different procedures are required, the rule can be amended.

However, in its present form, the procedures established in the

Proposed Rule are adequate for the collection of urine.

Chain of Custody

83. Petitioner argues that the procedures for establishing

chain of custody of the samples are inadequate.

84. Each of the parties agreed that ensuring an adequate

chain of custody of the race - d ay specimens is a vitally

important step in the collection and analysis process.

85. Dr. Tobin described the process set forth in the

Proposed Rule as an Ðoutline,Ñ and had a number of suggestions

as to how the container top could be sealed, how the tape could

be affixed, how the tape could be signed, etc. Those details

are not of such significance as to cause the Proposed Rule to be

an invalid exercise of delegated legislative authority.

86. Of interest to this analysis of the validity of the

P roposed Rule is the stipulated fact that Ð[t] he Proposed Rule

does not describe how all the individuals involved in the chain

of custody of a racing greyhound sample record their

involvement.Ñ The stipulation did not identify the stage at

which the suppos ed defect in the chain of custody occur s , or the

particular section of the Proposed Rule at issue. That the rule

does not identify how a person materially involved in the process

may record their involvement does not translate to a

determination that thei r involvement is not recorded.

87. A review of the Proposed Rule , and the evidence adduced

at the hearing, results in the conclusion that the Proposed Rule

and the forms used by the Division, establish a sufficient basis

for the identification of those persons directly involved in the

collection, storage, shipment, and analysis of race - day

specimens. Thus, provisions of the Proposed Rule that address

the identification of Division personnel involved in the chain of

custody of a racing greyhound sample is not impermissibly vague;

does not fail to establish adequate standards for agency

decisions; does not vest unbridled discretion in the agency; and

is not arbitrary or capricious.

Sealing, Labeling, and Logging

88. As set forth in the F indings of F act , the standards for

sealing the sample cup, applying and signing the evidence tape,

labeling the container, and logging the relevant information,

including the greyhoundÓs race and post, witness identification,

and collector identification are sufficient t o maintain the chain

of custody. Thus, those provisions of proposed rule 61D -

6.0052(2)(b), (2)(c), (3)(b) through (3)(d), and (4)(b) are not

invalid exercises of delegated legislative authority.

ÐLockableÑ Container

89. The rule requires that samples Ðshall be stored in a

lockable freezer or container,Ñ but that the freezer or container

need only be locked Ð[u]pon completion of packing the samples for

shipment.Ñ Mr. Ehrhardt agreed that if the freezer or container

is not locked, even though it is in a restricted area, the chain

of custody could be broken, and all samples could, as a result,

be invalidated. Although it was Mr. EhrhardtÓs stated intent

that the freezer or container should be locked at all times that

it is not being accessed to place sam ples in it, the plain

language of the rule suggests otherwise. By failing to require

that the freezer or container be locked so as to maintain the

chain of custody, the Proposed R ule is not supported by logic or

the necessary facts, and is irrational. Th us, the ÐlockableÑ

container provision of proposed rule 61D - 6.0052(4)(a) is, as

written, arbitrary and capricious.

Maintaining Sample Temperatures

90. As set forth in the F indings of F act, samples are

preferably to be kept frozen but, in any case, at a m inimum

refrigerated. The purpose of maintaining the samples cold is to

maintain their integrity, and to keep degraded metabolites of

substances from causing a false positive reading of a prohibited

substance in a dogÓs urine. The stipulated facts demonst rate

that the Proposed Rule does not require race - day specimens to be

stored frozen or refrigerated. The requirement of a Ðlockable

freezer or containerÑ does not remedy that deficiency.

91. Given the necessity of storing samples in a frozen or

refrig erated state, and the failure of the Proposed Rule to

require such, the ÐlockableÑ container provision of proposed rule

61D - 6.0052(4)(a) fails to establish adequate standards for agency

decisions, and is arbitrary or capricious.

Chain of Custody Form

92. Petitioner argues that the chain of custody form,

referred to as the sample card or the 503 form, does not includ e

the race number, the collectorÓs name, or the witnessÓs name(s).

A review of the 503 form in evidence demonstrates that it

includes spaces for the race and post, the trainer or ownerÓs

witness, and the collectorÓs initials. Those are sufficient to

address PetitionerÓs concerns regarding the chain of custody

form. The evidence adduced at the hearing was otherwise

sufficient to allow for the conclusion that the chain of custody

as described in the rule and the 503 form does not enlarge,

modify, or contravene the specific provisions of law implemented;

is not vague; does not fail to establish adequate standards for

agency decisions, or vest unb ridled discretion in the agency; and

is not arbitrary or capricious.

Shipping

93. The Proposed Rule authorizes the Division to ship the

samples via common carrier to the DivisionÓs contracted

laboratory. The issue raised by Petitioner is the chain of

cu stody from the transfer of the sample container to the common

carrier and thence to the laboratory. The Proposed Rule

describes forms providing information to ensure delivery of the

locked containers via the common carrier, and the contents of the

contain ers. Mr. Ehrhardt testified that there was no break in

the chain from the Division, to UPS, which would have its own

record of receipt and delivery, and the laboratory. His

testimony is accepted. Thus, the evidence adduced at the hearing

was sufficient to allow for the conclusion that the shipping

chain of custody does not enlarge, modify, or contravene the

specific provisions of law implemented; is not vague; does not

fail to establish adequate standards for agency decisions, or

vest unbridled discretio n in the agency; and is not arbitrary or

capricious.

Confiscation

94. The Proposed Rule authorizes the Division to confiscate

a variety of illegal or impermissible drugs, medications and

Ðother materials.Ñ Petitioner has objected to the rule on

several grounds, including Ðthe level of suspicionÑ required to

seize such alleged substances. That issue is not capable of a

regulatory definition, but is more appropriate for disposition in

the context of a fact - specific proceeding. Thus , the DivisionÓs

decis ion to forego defining the cause or proof for confiscating

illegal or impermissible substances does not enlarge, modify, or

contravene the specific provisions of law implemented; is not

vague; does not fail to establish adequate standards for agency

decisions, or vest unbridled discretion in the agency; and is not

arbitrary or capricious.

95. Peti tioner also objects to the statement that it is a

violation of the Proposed Rule to Ðthreaten to interfere,

actually interfere, or prevent the takingÑ of a sample, arguing

that it provides no definition for those terms, and includes no

procedures for samp les other than urine samples. For the reasons

set forth previously regarding the ÐTypes of Specimens,Ñ omission

of those definitions and allegedly superfluous procedures from

the Proposed Rule does not enlarge, modify, or contravene the

specific provision s of law implemented; is not vague; does not

fail to establish adequate standards for agency decisions, or

vest unbridled discretion in the agency; and is not arbitrary or

capricious.

96. Of greater concern with regard to the confiscation

issue is the fa ct that it provides no procedure for handling,

storing, or shipping such materials, and no chain of custody

procedure, other than delivery to the DivisionÓs contract

laboratory. The lack of any procedures in proposed rule 61D -

6.0052(5)(a) and (5)(b) for h andling confiscated materials

constitutes a failure to establish adequate standards for agency

decisions, and vests unbridled discretion in the agency.

ORDER

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is ORDERED that:

1. Except as set forth herein, proposed rule 61D - 6.052 is

not an invalid exercise of delegated legislative authority.

Accordingly, Palm Beach Greyhound Kennel AssociationÓs Petition

for Administrative Determination of the Invalidity of Proposed

Rule 61D - 6.0052, F.A .C., except as set forth herein, is

dismissed.

2. Proposed rules 61D - 6.0052(1)(b), related to the

selection of greyhounds for race - day sampling; 61D - 6.0052(4)(a),

related to the use of Ða lockable freezer or containerÑ in which

to store race - day specime ns; 61D - 6.0052(4)(a), related to the

temperature at which race - day specimens should be preserved; and

61D - 6.0052(5)(a) and (5)(b) regarding the chain of custody of

confiscated materials, are invalid exercises of delegated

legislative authority.

3. Jur isdiction is retained for the purpose of determining

reasonable attorneyÓs fees and costs pursuant to section

120.595(2), and whether the DivisionÓs actions were

substantially justified or special circumstances exist which

would make the award unjust. Any motion to determine fees and

costs shall be filed within 60 days of the issuance of this

Final Order.

DONE AND ORDERED this 1st day of October , 2018 , in

Tallahassee, Leon County, Florida.

S

E. GARY EARLY

Administrative L aw 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 1st day of October , 2018 .

COPIES FURNISHED:

Michael R. Billings, Esquire

Slusher & Rosenblum,P.A.

324 Datura Street

West Palm Beach, Florida 33401

(eServed)

Charles LaRay Dewrell, Esquire

Division of Pari - Mutuel Wagering

Department of Business and

Pr ofessional Regulation

2601 Blair Stone Road

Tallahassee, Florida 32399

(eServed)

Jett Lee Baumann, Esquire

Department of Business and

Professional Regulation

2601 Blair Stone Road

Tallahassee, Florida 32399 - 1035

(eServed)

Jennifer York Rosenblum, Esq uire

Slusher & Rosenblum, P.A.

Suite 324

324 Datura Street

West Palm Beach, Florida 33401

(eServed)

Jeremy E. Slusher , Esquire

Slusher & Rosenblum,P.A.

324 Datura Street

West Palm Beach, Florida 33401

(eServed)

Louis Trombetta, Esquire

Department of Bu siness and

Professional Regulation

2601 Blair Stone Road

Tallahassee, Florida 32399 - 2202

(eServed)

Robert Ehrhardt, Director

Division of Pari - Mutuel Wagering

Department of Business and

Professional Regulation

2601 Blair Stone Road

Tallahassee, Florida 32399 - 2202

(eServed)

Jonathan Zachem, Secretary

Department of Business and

Professional Regulation

2601 Blair Stone Road

Tallahassee, Florida 32399 - 2202

(eServed)

Jason Maine, General Counsel

Department of Business and

Professional Regulati on

2601 Blair Stone Road

Tallahassee, Florida 32399 - 2202

(eServed)

Ken Plante, Coordinator

Joint Administrative Procedures Committee

Room 680, Pepper Building

111 West Madison Street

Tallahassee, Florida 32399 - 1400

(eServed)

Ernest Reddick, Program Adm inistrator

Amy Grosenbaugh

Florida Administrative Code & Register

Department of State

R. A. Gray Building

500 South Bronough Street

Tallahassee, Florida 32399 - 0250

(eServed)

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected b y 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 the original notice of administrative ap peal with the

agency clerk of the Division of Administrative Hearings within

30 days of rendition of the order to be reviewed, and a copy of

the notice, accompanied by any filing fees prescribed by law,

with the clerk of the District Court of Appeal in the appellate

district where the agency maintains its headquarters or where a

party resides or as otherwise provided by law.