19-004186RU Georgina Baxter-Roberts vs. Department Of Business And Professional Regulation, Division Of Pari-Mutuel Wagering Status: Closed DOAH Final Order on Friday, January 17, 2020.

Summary: Petitioner did not demonstrate that alleged Agency statements were rules, or that the challenged rule was an invalid exercise of delegated legislative authority.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GEORGINA BAXTER - ROBERTS ,

Petitioner ,

vs. Case No. 19 - 4186R U

DEPARTMENT OF BUSINESS AND

PROFESSIONAL REGULATION,

DIVISION OF PARI - MUTUEL

WAGERING ,

Respondent .

/

SUMMARY FINAL ORDER

This cause is being determined based upon Respondent’s

Second Motion for Summary Final Order; Petitioner’s Response to

the Division’s Second Motion for Summary Final Order; and

Petitioner’s Cross Motion for Summary Final Order.

APPEARANCES

For Petitioner: David S. Romanik, Esquire

David S. Romanik, P.A.

2355 Southeast 5th Street

Ocala, Florida 34471

For Respondent: Megan S. Silver, Esquire

Johnny P. ElHachem, Esquire

Department of Business an d Professional

Regulation

2601 Blair Stone Road

Tallahassee, Florida 32399

STATEMENT OF THE ISSUE S

The issues to be determined are whether certain alleged

statements by Respondent, the Department of Business and

Professional Regulat ion, Division of Pari - Mutuel Wagering (the

Division or Respondent), constitute unadopted rules in violation

of section 120.54(1), Florida Statutes (2019), and whether

Florida Administrative Code Rule 61D - 6.011, as effective

September 5, 2018, is an invalid exercise of delegated

legislative authority as defined in section 120.52(8)(c), (d),

and (e).

PRELIMINARY STATEMENT

On August 6, 2019, Petitioner, Georgina Baxter - Roberts

(Petitioner or Ms. Baxter - Roberts), filed a Petition Challenging

Agency Statement as an Unadopted Rule (Petition), asserting that

certain agency statements concerning penalty guidelines

applicable to “stacking” of non - steroid anti - infammatory drug

( NSAID ) violations were unadopted rules in violation of section

120.54(1). On August 9, 201 9, the case was assigned to the

undersigned, and on August 12, 2019, was set for hearing to

commence on September 6, 2019.

On August 13, 2019, Respondent moved to dismiss the

Petition, and on August 16, 2019, Petitioner responded to the

Motion to Dismiss and requested leave to file an a mended

p etition. On August 21, 2019, Respondent’s Motion to Dismiss

was denied, Petitioner ’ s request for leave to file an amended

petition was granted, and Petitioner’s First Amended Petition

Seeking an Administrative Dete rmination t hat a n Agency Statement

is an Unadopted Rule or, Alternatively, Seeking an

Administrative Determination that Existing Rule 61D - 6.011

Constitutes an Invalid Exercise of Delegated Legislative

Authority (Amended Petition) was deemed as filed that d ay.

On August 22, 2019, a disciplinary proceeding against

Petitioner was referred to the Division of Administrative

Hearings (DOAH) and docketed as Case No. 19 - 4497. Respondent’s

motion to have the cases consolidated was denied, because to

consolidate w ould not result in an efficient use of resources.

On August 29, 2019, Respondent filed a Motion for Summary

Final Order and a Motion for Protective Order, followed the next

day by a Motion to Continue Final Hearing. On September 3,

2019, an Order was is sued granting the requested continuance,

and deferring ruling on the Motion for Protective Order and the

Motion for Summary Final Order until responses were received for

both.

On September 17, 2019, Petition er filed a Motion for Leave

to File a Second Amen ded Petition, which Respondent opposed.

After responses were filed to all pending motions, the Motion

for Protective Order was denied, and a motion hearing was

conducted by telephone on September 30, 2019. On October 1,

2019, an Order was issued which gr anted Petitioner’s Motion for

Leave to File a Second Amended Petition. Both the Department’s

Motion for Summary Final Order as to the Amended Petition and

Petitioner’s Cross Motion for Summary Final Order were withdrawn

by the parties. They were directed to provide mutually

acceptable dates for rescheduling the hearing, and after

receiving those dates, the heari ng was rescheduled for

November 12 and 13, 2019, in Tallahassee. However, because of

the expense Petitioner would incur to bring one of the witne sses

to Tallahassee, the hearing was rescheduled for November 20

and 21, 2019, via video teleconference, with sites in

Tallahassee and Lauderdale Lakes.

On October 9, 2019, the Department filed Respondent’s

Second Motion for Summary Final Order, to which Petitioner

responded and filed a Cross Motion for Summary Final Order and

Request for Oral Argument.

The parties presented oral argument on the Second Motion

for Summary Final Order and Cross Motion for Summary Final Order

during a live motion hearing on N ovember 13, 2019, in

Tallahassee. During the hearing on the motions, the parties

agreed that no material fact remained in dispute and that the

case could be decided on the merits, based on the papers and

exhibits submitted. The parties were given until N ovember 22,

2019, to file any supplemental exhibits related to matters

discussed during the motion hearing, and both parties did so.

All of the documents attached to the Second Amended Petition,

the Second Motion for Summary Final Order, and the Response to

the Motion for Summary Final Order have been considered in the

preparation of this Summary Final Order, in addition to the

Supplemental Exhibits filed by both parties.

All references to Florida Statutes are to the 2019

codification, unless otherwise spe cified. Rule 61D - 6.011 has

been amended since the filing of the Amended Petition in this

case. For clarity, the version of rule 61D - 6.011 being

challenged will be identified as the Challenged Rule.

FINDING S OF FACT

1. Petitioner is a horse trainer licen sed by the Division ,

holding a Professional Individual Occupational License, number

10047930 - 1021. As a licensed horse trainer, Petitioner is

subject to the regulatory authority of the Division, including

its enforcement of the statutes and properly adopt ed

administrative rules that regulate the medication of

thoroughbred horses that race at the licensed thoroughbred

racetracks in Florida.

2. Respondent is a state agency charged with the

implementation and enforcement of Florida’s pari - mutuel laws

pursuan t to section 20.165 and chapter 550, Florida Statutes,

including the licensing and regulation of all pari - mutuel

activities in the state.

3. As part of its regulatory responsibilities, the

Division regulates the medication of horses that participate in

ra ces conducted at licensed pari - mutuel facilities in Florida.

Amendments to Rule 61D - 6.011

4. In 2015, the legislature amended section 550.2415 with

respect to drug classification schedules and disciplinary

guidelines to be used in connection with the impe rmissible use

of drugs and naturally occurring substances for racehorses.

Section 550.2415(7) was amended to provide:

(7)(a) In order to protect the safety and

welfare of racing animals and the integrity

of the races in which the animals

participate, the division shall adopt rules

establishing the conditions of use and

maximum concentrations of medications,

drugs, and naturally occurring substances

identified in the Controlled Therapeutic

Medication Schedule, Version 2.1, revised

April 17, 2014, adopted b y the Association

of Racing Commissioners International, Inc.

Controlled therapeutic medications include

only the specific medications and

concentrations allowed in biological samples

which have been approved by the Association

of Racing Commissioners Inte rnational, Inc.,

as controlled therapeutic medications.

(b) The division rules must designate the

appropriate biological specimens by which

the administration of medications, drugs,

and naturally occurring substances is

monitored and must determine the t esting

methodologies, including measurement

uncertainties, for screening such specimens

to confirm the presence of medications,

drugs, and naturally occurring substances.

(c) The division rules must include a

classification system for drugs and

substance s and a corresponding penalty

schedule for violations which incorporates

the Uniform Classification Guidelines for

Foreign Substances, Version 8.0, revised

December 2014, by the Association of Racing

Commissioners International, Inc. The

division shall ad opt laboratory screening

limits approved by the Association of Racing

Commissioners International, Inc., for drugs

and medications that are not included as

controlled therapeutic medications, the

presence of which in a sample may result in

a violation of t his section.

(d) The division rules must include

conditions for the use of furosemide to

treat exercise - induced pulmonary hemorrhage.

(e) The division may solicit input from the

Department of Agriculture and Consumer

Services in adopting the rules requ ired

under this subsection. Such rules must be

adopted before January 1, 2016.

(f) This section does not prohibit the use

of vitamins, minerals, or naturally

occurring substances so long as none exceeds

the normal physiological concentration in a

race - d ay specimen. (emphasis added).

5. In response, the Division amended rules 61D - 6.008

and 61D - 6.011, and both amendments became effective January 10,

2016. Rule 61D - 6.008 addresses permitted medications allowed for

horses, and rule 61D - 6.011 addresses t he penalties to be imposed

for drug violations.

6. Rule 61D - 6.011 adopted the drug classifications

identified in the Uniform Classification Guidelines for Foreign

Substances, Version 8.0, revised December 2014, by the

Association of Racing Commissioner s International, Inc. (the ARCI

Document). It did not, however, incorporate the ARCI recommended

penalty schedule contained in the ARCI Document.

7. The Florida Horsemen’s Benevolent and Protective

Association, Inc. (the FHBPA), a trade association re presenting

the interests of thoroughbred racehorse owners and trainers in

Florida, challenged the validit y of the 2016 amendment to

rule 61D - 6.011, as an invalid exercise of delegated legislative

authority, in Florida Horsemen’s Benevolent and Protective

A ssociation v. Department of Business and Professional

Regulation , DOAH Case No. 17 - 5882RX. In a Partial Final Order

issued March 13, 2018, the rule was invalidated because it failed

to incorporate the penalty guidelines as well as the

classification syste m for drugs and substances, as required by

section 550.2415(7)(c). The Partial Final Order was affirmed by

the First District Court of Appeal on March 7, 2019. Dep’t of

Bus. & Prof’l Reg. v. Fla. Horsemen’s Benevolent & Protective

Ass’n , 264 So. 3d 1191 (Fla. 1st DCA 2019).

8. While the appeal of the Partial Final Order was pending

before the First District, the Division amended rule 61D - 6.011

(the Challenged Rule). The relevant portion of the Challenged

Rule, which became effective on September 5, 201 8, states as

follows:

(1) The purpose of this rule is to

designate and classify prohibited substances

and the corresponding penalties that the

Division shall impose upon a finding that a

horse participated in a race while

impermissibly medicated or with a prohibited

substance present in their body. Nothing

hereunder modifies the provisions of rule

61D - 6.008, 61D - 3.002, F.A.C., or rules

promulgated under section 550.2415, F.S.

The State of Florida has not established a

Racing Commission. Any reference to a

Commission within the incorporated document

in subsection (2) of this rule is not

applicable.

(2) In accordance with section 550.2415,

F.S., the Uniform Classification Guidelines

for Foreign Substances, version 8.0, revised

December 2014, by the Assoc iation of Racing

Commissioners International, Inc., is hereby

incorporated by reference. An electronic

copy is available at

https://www.flrules.org/Gateway/reference.as

p?No=Ref - 06400.

(3) The penalties corresponding to the

classification of a substance, provided by

the incorporated document in subsection (2)

of this rule, shall be imposed when the

presence or a specific amount of a substance

is identified in a urine or blood specimen

in violation of Division rule or Florida

Statutes. Penalties shall be imposed

against racing horse trainers, pursuant to

subsection 61D - 6.002(1), F.A.C., and against

the purse, sweepstakes, and trophy received

by racing horse owners or trainers, pursuant

to section 550.2415(3)(a), F.S.

9. It is this version of rule 61D - 6. 011 that is at issue in

this case.

10. The ARCI Document incorporated into the Challenged Rule

is a Model Rule of the Association of Racing Commissioners

International. No evidence was presented to demonstrate that

Florida has adopted any of the other M odel Rules of the ARCI, and

the parties indicated during the motion hearing that Florida has

not done so at this time.

11 . One type of medication violation that the Division

penalizes is when permitted NSAIDs are found in a horse’s sample

in amounts that exceed permitted levels. When two NSAIDs are

present at the same time, the amount permitted for each is lower

than what is permitted for one, standing alone. When two NSAIDs

are present in amounts over the permitted levels, the violation

is referred to as a “stacking” violation. Rule 61D - 6.008(3)

provides that samples may contain one of the three NSAIDs listed,

up to the primary threshold, and may contain two NSAIDs with

concentrations up to the secondary threshold. The rule

identifies the primary and secondary concentrations for Flunixin,

Ketoprofen, and Phenylbutasone.

12 . The Challenged Rule, via the ARCI Document which it

incorporates, identifies these NSAIDs as Class 4 drugs. The ARCI

Document, and thus the Challenged Rule, also lists these dr ugs as

Penalty Class C drugs, with an asterisk denoting a footnote which

states, “See Recommended Penalty Section of Document.”

13 . Page 28 of the ARCI Document, which is part of the

Recommended Penalty portion of the document, addresses the

penalties applicable for stacking violations. It states:

The following are recommended penalties for

violations due to the presence of a drug

carrying a Category “B” penalty, for the

presence of more than one NSAID in a

plasma/serum sample , subject to the

provision s set forth in ARCI - 011 - 020(E) and

ARCI - 025 - 020(E) and for violations of the

established levels for total carbon dioxide:

LICENSED TRAINER

1 st offense 2 nd offense (365 - day 3 rd offense (365 - day

period) in any period) in any

jurisdiction jurisdiction

• M inimum 15 - day • Minimum 30 - day • Minimum 60 - day

suspension absent suspension absent mitigating suspension absent mitigating

mitigating circumstances. The circumstances. The

circumstances. The presence of presence of

presence of aggravating factors aggravating factors

aggravating factors could be used to could be used to

could be used to impose a maximum of

impose a maximum of impose a maximum of a a one - year

a 60 - day suspension 180 - day suspension suspension

AND AND

• Minimum fine of • Minimum fine of $1,000 absent • Minimum fine of

$500 absent mitigating $2,500 absent

mitigating cir cumstances. The mitigating

circumstances. The presence of circumstances. The

presence of aggravating factors presence of

aggravating factors could be used to aggravating factors

coul d be used to could be used to

impose a maximum impose a maximum fine impose a maximum of

fine of $1,000. of $2,500. $5,000 or 5% purse

(greater of the two)

AND

• May be referred

to the Commission

for any further

action deemed

necessa ry by the

Commission.

LICENSED OWNER

1 st offense 2 nd offense (365 - day 3 rd offense (365 - day

period) in owner’s period) in owner’s

stable in any stable in any

jurisdiction jurisdiction

• Disqualification • Disqualification • Disqualification,

and loss of purse [in and loss of purse [in the absence of loss of purse, and in the absence of

the absence of mitigating mitigating

mitigating circumstances]* circumstances, a

ci rcumstances]* $5,000 fine

AND AND AND

• Horse must pass a • Horse must pass a Horse shall be

commission - approved commission - approved placed on

examination before examination b efore Veterinarian’s List

becoming eligible to becoming eligible to for 45 days and

be entered. be entered. must pass a

commission - approved

examination before

bec oming eligible

to be entered.

(emphasis added).

14 . ARCI - 011 - 020(E) and ARCI - 025 - 020(E)(the Model Stacking

Rules), referenced in the “subjec t to” clause at the top of

page 28 of the ARCI Document, are part of the Model Rules of

Racing published by the ARCI. The text for these rules is not

included in the ARCI Document. The text of the ARCI Document

does not state that it incorporates these Model Stacking Rules

by reference, and there is no hyperlink to the Model Stacking

Rules or a statement describin g how affected persons may obtain

a copy of them in the Challenged Rule. These Model Stacking

Rules provide for lesser penalties for stacking violations than

those in the ARCI Document.

15 . The ARCI Document also does not provide an effective

date for th e Model Stacking Rules it references. The copy of

the Model Stacking Rules attached to the Second Amended Petition

is dated April 2018, a date well after the version of the ARCI

Document specified in section 550.4215. Moreover, Version 5.8

of the Model R ules of Racing (Exhibit F to Respondent’s Second

Motion for Summary Final Order), which is 448 pages long, states

that “[t]he Model Rules are seen as a living document that is

amended as the need arises.”

Charges Against Petitioner

16. On February 20, R espondent issued an Administrative

Complaint against Ms. Baxter - Roberts , alleging a stacking

violation involving two NSAID. She was also served with a

proposed stipulation and consent order, which provided for a

$1,000 fine and 30 - day suspension. The vio lation charged in the

Administrative Complaint was Petitioner’s second stacking

offense in a 365 - day period.

17 . The proposed penalty was consistent with the

disciplinary provisions in the ARCI Document, without reference

to the Model Stacking Rules ide ntified in the “subject to”

clause. As noted above, if the cited Model Stacking Rules are

consulted, a lesser penalty is suggested.

18 . Respondent’s Disciplinary Guidelines are available for

review on the Department’s website, and by following the link t o

the ARCI Document provided in the Division’s rules. Respondent

did not provide a copy of the Disciplinary Guidelines to

Petitioner with the Administrative Complaint and proposed

stipulation and consent order. There is no obligation to do so.

19 . Petit ioner executed an Election of Rights form which

was received by the Division on March 11, 2019, choosing option

three, which states: “ I do not dispute the allegations of

material fact in the Administrative Complaint and waive my right

to any form of heari ng. I request that a Final Order imposing a

penalty and fines be entered in this case.” She also executed

the Stipulation and Consent Order, by which she agreed to a

$1,000 fine and 30 - day suspension.

20 . Petitioner was not represented by counsel when s he

signed these documents. The Stipulation and Consent Order that

she signed states,

Respondent is aware that she/he is entitled

to the advice of counsel, and has either

sought the advice of counsel or by execution

of this Stipulation and Consent Order, is

knowingly waiving the opportunity to seek

advice of counsel. Respondent acknowledges

that Petitioner has not made any promise,

nor has it in any other way encouraged

Respondent to enter into this Stipulation

and Consent Order without the advice of

coun sel.

21 . The Stipulation and Consent Order was approved for

legal sufficiency on March 12, 2019, and filed with the agency

clerk on March 15, 2019.

22 . More than two months later, on May 31, 2019,

Petitioner, through counsel, petitioned to set aside the

Stipulation and Consent Order, petitioned to have a formal

administrative hearing involving disputed issues of material

fact, and requested that the doctrine of equitable tolling be

applied in order to allow for the filing of an untimely petition.

The petition also requested an immediate stay of the license

suspension pending final resolution of the proceeding. While the

Division agreed to grant a stay of the remaining 25 days of

suspension on June 5, 2019, it entered an Orde r on July 25, 2019,

denyin g Ms. Baxter - Roberts’ other requests for relief. Ms.

Baxter - Roberts appealed this Order to the First District Court of

Appeal, and that appeal remains pending.

23 . There are other trainers who received Administrative

Complaints charging stacking viola tions and proposed stipulations

and consent orders where the penalties proposed were, like that

presented to Ms. Baxter - Roberts, consistent with the penalty

outlined in the ARCI Document adopted by the Challenged Rule.

Yet Another Amendment

24 . On June 20, 2019, the Division filed a Notice of

Proposed Rule Development, indicating that it intended to amend

the Challenged Rule. The proposed amendment does not incorporate

by reference the terms of the M odel R ules referenced in the ARCI

Document, but engraf ts the text from those rules into rule 61D -

6.011. This amendment to rule 61D - 6.011 was filed for adoption

on August 9, 2019, and became effective August 29, 2019. The

Amended Petition in this case, where the challenge to rule 61D -

6.011 was first alleged, was filed August 16, 2019. 1/

25. Bradford Beilly is an attorney who represents licensees

before the Division. He was also counsel for the FHBPA in the

challenge to the prior version of rule 61D - 6.011, that resulted

in the incorporation of the ARCI Do cument into the rule.

26 . Between April 2019 and August 29, 2019, at least four

trainers represented by Mr. Beilly also had stacking violations

involving NSAIDs for which Administrative Complaints were issued.

27 . On May 7, 2019, Mr. Beilly emailed L ouis Trombetta and

other employees of the Division, providing a copy of a Model

Stacking Rule referenced in the ARCI Document and voicing his

opinion that Respondent was over - penalizing stacking violations.

28 . With respect to these four trainers, the Co nsent Orders

entered after negotiation with counsel resulted in penalties

consistent with the most recent amendment to the rule.

CONCLUSIONS OF LAW

29. DOAH has jurisdiction over the subject matter and the

parties to this proceeding pursuant to section s 120.56(4),

120.569, and 120.57(1).

30 . Petitioner seeks a determination that there are agency

statements that meet the definition of a rule, but have not been

adopted by the process outlined in section 120.54. In the

alternative, she asserts that the C hallenged Rule, as amended

September 5, 2018, is an invalid exercise of delegated

legislative authority.

31 . The Division is an “agency” as that term is defined in

section 120.52(1), and its statutory powers include rulemaking

pursuant to section 550.0251 (3).

32 . Section 120.52(16) provides in part:

(16) “Rule” means each agency statement of

general applicability that implements,

interprets, or prescribes law or policy or

describes the procedure or practice

requirements of an agency and includes any

fo rm which imposes any requirement or

solicits any information not specifically

required by statute or by an existing rule.

33 . Section 120.52(2) defines an “unadopted rule” as “an

agency statement that meets the definition of the term ‘rule’

but that ha s not been adopted pur suant to the requirements of

s. 120.54.”

34 . The Legislature has established a strong policy in

favor of rulemaking for agencies in the State of Florida.

Rulemaking is not a matter of agency discretion, and each agency

statement de fined as a rule by section 120.52 shall be adopted

by the rulemaking procedure provided in section 120.54 as soon

as feasible and practicable. § 120.54(1), Fla. Stat.

35 . While agencies are encouraged to adopt rules where

they have the statutory authori ty to do so, they may only go as

far as the statutory grant received. Section 120.52(8) defines

the term “invalid exercise of delegated legislative authority.”

After listing the ways in which a rule can constitute an invalid

exercise, the “flush left” po rtion of the definition provides:

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 specifi c 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 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 the specific

powers and duties conferred by the enabling

statute.

36 . Those who are substantially affected by an unadopted

rule have a remedy pursuant to section 120.56(4), which

authorizes them to seek an adminis trative determination that the

statement violates section 120.54(1)(a). A petition seeking such

a determination must contain a description of the statement

alleged to be an unadopted rule, and shall state facts sufficient

to show that it is in fact an una dopted rule. Section

120.56(4)(e) provides that if an administrative law judge enters

a final order finding that all or part of an unadopted rule

violates section 120.54(1)(a), then the agency must immediately

discontinue all reliance upon the unadopted r ule, or any

substantially similar statement, as a basis for agency action.

Stated another way, the relief available under section 120.56(4)

is prospective in nature.

37 . Petitioner has standing to bring the challenge in this

proceeding. As a licensed h orse trainer, she is subject to the

rules adopted by the Division for the licensing and regulation of

horse racing, and is substantially affected by any unadopted

rules used by the Division in carrying out its regulatory

responsibilities. Respondent does not dispute Petitioner’s

standing to seek an administrative determination as to whether

the purported agency statements she identifies are unadopted

rules.

38 . There are four agency statements that Petitioner

alleges are unadopted rules, and these statem ents are identified

on pages 17 and 18 of the Second Amended Petition. Petitioner

describes these statements as follows:

(a) Notwithstanding that a Class 3 NSAID

stacking violation per ARCI - 025 - 020(E)

carries a Category “C” penalty consisting of

only a m inimal fine with no license

suspension, the Division has adopted an

agency policy of treating Class 3 NSAID

stacking violations as carrying a Category

“B” penalty that include higher fines than

are authorized for a penalty under Category

“C” and for licens ure suspension.

(b) Notwithstanding the decision in

Fernandez v. Florida Department of Health ,

[82 So. 3d 1202 (Fla. 4th DCA 2012)], and

general principles of administrative law,

the Division has adopted an agency policy of

imposing upon its licensees di sciplinary

penalties in excess of the maximum penalty

that the Division can lawfully impose for a

Class 3 stacking violation.

(c) Notwithstanding the decision in

Fernandez v. Florida Department of Health ,

supra , and general principles of

administrative l aw, the Division has adopted an agency policy of including in proposed

settlement agreements with [its] licensees

for Class 3 NSAID stacking violations

disciplinary penalties in excess of the

maximum penalty that the Division can

lawfully impose for a Clas s 3 NSAID stacking

violation.

(d) Notwithstanding the decision in Fernandez v. Florida Department of Health ,

supra , and general principles of

administrative law, the Division has adopted

an agency policy of including in proposed

settlement agreements wit h [its] licensees

for Class 3 NSAID stacking violations

disciplinary penalties in excess of the

maximum penalty that the Division can

lawfully impose while concealing from the

licensee that the disciplinary penalties

required under the settlement agreement are

in excess of the maximum penalty that the

Division can lawfully impose for a Class 3

NSAID stacking violation.

39 . At the crux of Petitioner’s argument with respect to

all four statements is the premise that the Model Stacking Rules

referenced in t he “subject to” clause of the ARCI Document are

included in the Challenged Rule, because they are referenced in

the ARCI Document incorporated into the rule. They are not part

of the Challenged Rule.

40 . As noted in the Findings of Fact, the text of the Model

Stacking Rules is not included in the ARCI Document, and the ARCI

Document does not expressly incorporate those rules by reference.

For the ARCI Document to be interpreted as incorporating the

Model Stacking Rules runs afoul of the rulemaking requi rements of

chapter 120.

41. Florida has specific requirements for incorporating

information by reference. Section 120.54(1)(i) provides:

(i)1. A rule may incorporate material by

reference but only as the material exists on

the date the rule is adopted. For purposes

of the rule, changes in the material are not

effective unless the rule is amended to

incorporate the changes.

* * *

3. In rules adopted after December 31,

2010, material may not be incorporated by

reference unless:

a. The material has b een submitted in the

prescribed electronic format to the

Department of State and the full text of the

material can be made available by free

public access through an electronic

hyperlink from the rule making the reference

in the Florida Administrative Code ; or

b. The agency has determined that posting

the material on the internet for purposes of

public examination and inspection would

constitute a violation of federal copyright

law, in which case a statement to that

effect, along with the address of locati ons

at the Department of State and the agency at

which the material is available for public

inspection, must be included in the notice

required by subparagraph (3)(a)1.

42. Section 120.54(1)(i)6. authorizes the Department of

State to adopt by rule requi rements for incorporating materials

pursuant to this paragraph. As a result, the Department of

State has adopted Florida Administrative Code Rule 1 - 1.013,

which provides in pertinent part:

(1) Any ordinance, standard, specification,

guideline, manual, ha ndbook, map, chart,

graph, report, form or instructions to

forms, or other similar material that meets

the definition of rule provided in section

120.52(16), F.S., and is generally available

to affected persons may be incorporated by

reference in a rule ad opted pursuant to

section 120.54, F.S., and Rule 1 - 1.010,

F.A.C.

(2) A reference to material incorporated in

a rule must include:

(a) Specific identification of the

incorporated material, along with an

effective date. Forms and their

instructions sho uld be identified by title,

the form number, and effective date. In

addition, incorporated forms and

instructions should clearly display the form

title, form number, effective date, and the

number of the rule in which it is

incorporated.

(b) A statement that the material is

incorporated by reference.

(c) A statement describing how an affected

person may obtain a copy of the incorporated

material. (Notice: agencies or units of

government not within the Department of

State may not indicate the Departme nt of

State or the Administrative Code and

Register Section as the agency responsible

for providing copies of incorporated

materials.) .

(3) A rule may incorporate material by

reference, but only in the form that the

material exists on the date that the r ule is

adopted. Any substantive amendments to

material incorporated by reference must be

promulgated under the rulemaking provisions

of section 120.54, F.S., in order for the

amended portions to be valid. Technical

changes, those not changing the substan ce of

the material incorporated by reference, may

be made in accordance with subsection 1 -

1.010(10), F.A.C.

* * *

(6) When incorporated materials are filed electronically through the Department of

State’s e - rulemaking Internet website, the

Department sh all make the full text of

incorporated materials available free for

public access through an electronic

hyperlink from the rule that references the

material, directly to the material

incorporated. Hyperlinks from rules in the

Florida Administrative Code t o any material

other than incorporated materials are

prohibited. (emphasis added).

43. While the ARCI Model Rules are mentioned in the ARCI

Document, the indices for incorporating those rules by reference

are not present. Respondent’s assertion that t he Model Stacking

Rules are not part of the Challenged Rule is correct.

44. Petitioner asserts that the decision in Dep artmen t of

Bus iness & Prof essiona l Reg ulation v. Fl orida Horsemen’s

Benevolent & Protective Ass ociatio n requires inclusion of the

Model Stacking Rules, because when adopting a rule incorporating

the ARCI Document, section 550.2415 required the Division to

incorporate “the entire document.” The reality is that the

Division did in fact incorporate the entire document. Nothing

in section 5 50.2415 required Respondent to adopt the ARCI

Document and any other documents to which it refers, and the

text of the Model Stacking Rules is simply not within the ARCI Document that the Division was mandated to adopt. To give life

to Petitioner’s argume nt would require section 550.2415(7)(c) to

specify that the Division’s rule “must include a classification

system for drugs and substances and a corresponding penalty

schedule for violations which incorporates the Uniform

Classification Guidelines for Fore ign Substances, Version 8.0,

revised December 2014, by the Association of Racing

Commissioners International, Inc., and all documents to which it

refers .” Section 550.2415 does not include this language, and

the undersigned is not authorized to add it. K asischke v.

State , 991 So. 2d 803, 810 (Fla. 2008).

45. The L egislature is presumed to know existing law when

it enacts a statute. Dep’t of Ins. v. First Floridian Auto &

Home Ins. Co. , 803 So. 2d 771, 775 (Fla. 1st DCA 2001).

Therefore, when it amend ed section 550.2415, specifically

directing that the ARCI Document be incorporated by reference,

it must be presumed that the legislature knew the constraints

that section 120.54 contains with respect to incorporating

documents. It cannot be presumed that the legislature intended

for the Division to act in a manner inconsistent with existing

law.

46 . Moreover, paragraph (3) of the Challenged Rule

provided that “the penalties corresponding to the classification

of a substance, provided by the incorporated document in

subsection (2) of this rule, shall be imposed when the presence

or a specific amount of a substance is identified in a urine or

blood specimen . . . .” (emphasis added). The ARCI Document

provides a specific penalty for stacking violations, as

identified in the chart replicated at paragraph 12. With

respect to the first “statement,” Respondent has not adopted a

policy of treating stacking violations as carrying a higher

penalty than that authorized by the Challenged Rule. It was

simply foll owing the rule in effect at the time.

47 . The second identified statement also alleges that

Respondent is imposing disciplinary penalties in excess of the

maximum penalty that the Division can lawfully impose for an

NSAIDs stacking violation. The second statement also alleges

that this policy has been adopted “notwithstanding the decision

in Fernandez v. Florida Department of Health .”

48 . Petitioner cites the Fernandez decision as standing

for the premise that an agency is generally without authority t o impose discipline in excess of the maximum penalty authorized by

the applicable penalty guideline. In the undersigned’s view,

Petitioner stretches the holding of Fernandez beyond its terms.

49. Fernandez was a nurse who was charged with statutory

viol ations as a result of administering Heparin to a friend in a

hospital where he was not employed. Fernandez did not dispute

the facts and appeared at a hearing pursuant to section

120.57(2), where the Board of Nursing revoked Fernandez’s

license. The Four th District Court of Appeal found that there

was no disciplinary guideline established by rule for one of the

counts charged, and for that count, no penalty could be imposed.

With respect to the remaining count, the maximum guideline

penalty fell short of revocation.

50. With respect to this count, the court stated:

We acknowledge that section 456.079(3),

Florida Statutes (2008), gives the Board

discretion to depart from the guidelines and

impose a harsher penalty when there are

aggravating circumstance s. The final order

on review does not articulate those

“[c]ircumstances which may be considered for

the purposes of mitigation or aggravation of

[a] penalty.” Accordingly, we reverse the

penalty imposed on Count I and remand for a

penalty consistent with the guideline. Our

holding is without prejudice to the Board

imposing a harsher penalty, provided it

complies with section 456.079(3) and its own

guideline.

82 So. 3d at 1204 (citations omitted; emphasis added); see also ,

Fernandez v. Dep’t of Health , 1 20 So. 3d 117, 119 (Fla. 4th DCA

2013)(statute gives the Board discretion to depart from the

penalty guidelines set forth in rule and to impose a harsher

penalty when there are aggravating circumstances).

51. Clearly, Fernandez does not stand for the pre mise that

an agency cannot exceed the guideline penalty. Instead, it

stands for the premise that an agency cannot exceed the guideline

penalty without evidence of aggravating circumstances. Here, the

penalty provided and accepted in Petitioner’s case was part of a

settlement offer. Petitioner was free to reject the offer and attempt to negotiate for a lower penalty, as some other trainers

did. She did not do so in a timely manner. Moreover, not only

is the penalty contained in the settlement offer pres ented to

Petitioner consistent with the penalty outlined on page 28 of the

ARCI Document incorporated into the Challenged Rule, it is part

of an offer that Petitioner could accept or reject. As such, it

does not require compliance, create rights while adv ersely

affecting others, or otherwise have the direct and consistent

effect of law. State Bd. of Admin. v. Huberty , 46 So. 3d 1144,

1147 (Fla. 1st DCA 2010); Beverly Enter. - Fla., Inc. v. Dep’t of

HRS , 573 So. 2d 19, 22 (Fla. 1st DCA 1990). The second

ide ntified statement does not constitute an unadopted rule.

52 . The third asserted statement is not an unadopted rule

for the same reasons as the second statement. The Division was

following the Challenged Rule as written, as opposed to

increasing the pena lty to be imposed.

53 . The fourth alleged agency statement is much the same as

the third, with the added allegation that the Division is

concealing from licensees that the disciplinary penalties

required under a settlement agreement are in excess of the

maximum penalty the Division may impose for an NSAIDs stacking

violation. As with the other alleged statements, the penalty

included in the stipulation was not in excess of the penalty

outlined in the ARCI Document and incorporated into the

Challenged Rul e. Further, Petitioner’s statement that the

Division “concealed” information is based upon her allegation

that the Division did not expressly tell Petitioner that the

proposed penalty exceeded the guideline penalty identified in the

Model Stacking Rules f or the violation, and that this concealment

“essentially tricked” her into executing the settlement

stipulation.

54 . As previously found, the settlement stipulation did not

include a penalty in excess of the version of the Challenged

Rule. Further, whil e the Division freely admits that it did not

provide a copy of the rule to Petitioner, her characterization of

this omission as concealment is simply inconsistent with the

facts developed through the exhibits submitted, and the law

applicable to licensed t rainers in Florida.

55 . First, Kate Marshman testified that the rules for pari -

mutuel wagering are all posted on the agency’s website, including

rule 61D - 6.011. It cannot be said that the Division concealed

the rule from Petitioner, or any other license e, when they are

readily available to the public. Rule 61D - 6.002(1) expressly

provides that “[t]rainers, kennel owners and operators are

presumed to know the rules of the Division.” Moreover, “we are

all charged with knowledge of existing laws.” Morey’s Lounge v.

Dep’t of Bus. & Prof’l Reg. , 673 So. 2d 538, 540 (Fla. 4th DCA

1996). Petitioner insinuates that the Division was under a duty

to provide a paper copy of the rules to her, but cites to no

statute, rule, or case that imposes such an obligation. Even

assuming that the obligation existed, which it does not, an

examination of the Challenged Rule and the ARCI Document

incorporated into the rule would simply support the penalty

actually proposed. 2 /

56 . Finally, offers of settlement do not require

c ompliance, create rights while adversely affecting others, or

otherwise have the direct and consistent effect of law. State

Bd. of Admin. v . Huberty ,; Beverly Enter. - Fla., Inc. v. Dep’t of

HRS . Petitioner has not demonstrated that statement number four

i s an accurate portrayal of agency policy or that it is an agency

policy that meets the definition of a rule.

The Challenge to Rule 61D - 6.011

57 . In the alternative, Petitioner argues that the

Challenged Rule is an invalid exercise of delegated legislati ve

authority in violation of section 120.52(8)(c), (d), and (e).

58. Petitioner is challenging an existing, as opposed to a

proposed, rule. Section 120.56(3) requires Petitioner to prove

by a preponderance of the evidence that the existing rule is an

in valid exercise of delegated legislative authority as to the

objections raised.

59 . A preponderance of the evidence has been defined as

“the greater weight of the evidence,” or evidence that “more

likely than not” tends to prove a certain proposition. Gr oss v.

Lyons , 763 So. 2d 276, 280 n.1 (Fla. 2000).

60 . Section 120.56(1)(a) provides that any person

substantially affected by a 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. Section 120.52(8) defines that term as follows:

(8) “Invalid exercise of delegated

legislative authority” means action that

goes beyond the powers, functions, and

duties delegated by the Legislature. A

proposed or ex isting 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 ha s 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 ru le 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

capricio us if it is adopted without thought

or reason or is irrational; or

(f) 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 statuto ry 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 specific powers and dutie s 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, no r 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 enabling statute.

61 . In her Second Amended Petition, Petitioner identifies

three bases in section 120.52(8) for invalidating the rule: that

the rule m odifies and contravenes the express directive of

section 550.2415(7)(c), in violation of section 120.52(8)(c);

that the rule is vague, fails to establish adequate standards for

agency decisions, or vests unbridled discretion in the agency in

violation of s ection 120.52(8)(d); and that the rule is arbitrary

and capricious in violation of section 120.52(8)(e).

62 . Petitioner contends that the Challenged Rule

constitutes an invalid exercise of delegated legislative

authority under section 120.52(8)(c) “becau se the Division’s

failure to incorporate to the rule the provisions of ARCI Model

Rule ARCI - 025 - 020(E) contravenes the specific provisions of

section 550.2415(7)(c) that require the Division to incorporate

that model rule into Rule 61D - 6.011.” (Second Am ended Petition

at 22).

63 . Section 550.2415(7)(c) requires the Division’s rules to

“include a classification system for drugs and substances and a

corresponding penalty schedule for violations which incorporates

the Uniform Classification Guidelines for Foreign Substances,

Version 8.0, revised December 2014, by the Association of Racing

Commissioners International, Inc.” It does not require the

Division to adopt the ARCI Document and all documents to which

the ARCI Document may refer. To interpret secti on 550.2415(7)(c)

in the manner Petitioner claims is mandated would require the

statute to include a phrase that it does not contain. As noted

above, it would be beyond an administrative law judge’s authority

to engraft language into section 550.2415 that does not currently

exist. The Challenged Rule does not enlarge, modify, or

contravene the specific provisions of the law implemented, in

violation of section 120.52(8)(c). 3 /

64 . Petitioner also argues that the Challenged Rule is

impermissibly vague pur suant to section 120.52(8)(d) because “it

fails to inform the public that certain provisions of the ARCI

Document that are displayed upon clicking the hyperlink set forth

in rule 61D - 6.011(2) are in actuality not part of the adopted

rule and therefore are not in full force or effect. ” 4 /

65 . A rule is considered to be vague in violation of

section 120.52(8)(d) if it requires performance of an act in

terms that are so vague that people of common intelligence must

guess as to its meaning. State v. Peter R . Brown Constr., Inc. ,

108 So. 3d 723, 728 (Fla. 1st DCA 2013)(no standards identified

to determine what constitutes “decorative items”).

66 . As stated previously, the entire ARCI Document was

incorporated by reference into the Challenged Rule, and the ARCI

Document contains a penalty for stacking violations. It is

simply not the more lenient penalty identified in the Model

Stacking Rules to which the ARCI Document refers. Further, in

paragraph (3), the Challenged Rule specifies that “[t]he

penalties corresponding to the classification of a substance,

provided by the incorporated document in subsection (2) of this

rule, shall be imposed . . . .” A logical reading of the

Challenged Rule, as it then existed, is that the penalties

actually contained in t he ARCI Document are the penalties that

control, as opposed to the more lenient penalties included in the

Model Stacking Rules.

67 . Petitioner relies heavily on the “subject to” language

in the ARCI Document, saying that this phrase is rendered

meaning less without the inclusion of the ARCI Model Rules to

which the ARCI Document refers, and makes the Challenged Rule

vague. The phrase “subject to” is not defined in the rule, but

Merriam - Webster defines it as “1: affected by or possibly

affected by (some thing); 2: likely to do, have or suffer from

(something); 3: dependent on something else to happen or to be

true.” See “Subject To” https://merriam -

webster.com/dictionary/subjectto (last v isited Jan. 3, 2020;

examples omitted). This definition does not support the

assertion that the penalties in the ARCI Model Rules will

automatically apply. The Challenged Rule is not vague.

68 . Finally, Petitioner claims that the Challenged Rule is

arb itrary and capricious in violation of section 120.52(8)(e),

which provides that a rule is arbitrary if it is not supported by

logic or the necessary facts, and a rule is capricious if it is

adopted without thought or reason or is irrational. See Dravo

Bas ic Materials Co. v. Dep’t of Transp. , 602 So. 2d 632, 634

(Fla. 1st DCA 1992). Petitioner argues that it is “neither

logical nor rational -- given that the purpose of the penalty

guidelines is that the more the serious the violation the more

severe penaltie s -- that the acknowledged minor violation of NSAID

stacking would carry the same penalty as the other severe

medication violations involving prohibited substances that carry

a Category B penalty.”

69 . As noted by Respondent in the Second Motion for Summar y

Final Order, the basis upon which the Division relied in adopting

the Challenged Rule was the direct mandate from the L egislature

to incorporate the ARCI Document. After some initial prodding,

the Division did just that. The Division was free to consid er

the penalties in the Model Stacking R ules and eventually

incorporated these penalties into the rule. However, there is

nothing in section 550.2415 that mandated inclusion of the Model

Stacking Rules, and it was not arbitrary or capricious to adopt

only what the L egislature required.

70 . Petitioner argues that NSAID stacking violations are

minor violations in the racing industry, and it is arbitrary to

impose a more severe penalty for such a minor offense. However,

the penalties for NSAID stacking v iolations are included in the

ARCI Document. Beyond the requirement that the Division adopt

the ARCI Document, it is within its discretion to adopt, or not

adopt, the Model Rules of the ARCI or portions thereof.

71 . Petitioner presented the deposition of Ed Martin,

Executive Director of ARCI, fro m a prior dispute, in which

Mr. Martin stated that NSAID stacking violations are considered

to be minor violations. Mr. Martin’s opinion is consistent with

the Model Rules of his organization. While clearly t hat is the

position of the ARCI, as articulated in its Model Rules, there

was no statutory requirement for Florida to adopt the ARCI

position in every respect. Petitioner has not demonstrated that

the Challenged Rule is arbitrary or capricious.

ORDER

Bas ed on the foregoing Findings of Fact and Conclusions of

Law, it is ORDERED that Petitioner’s Second Amended Petition be

dismissed.

DONE AND ORDERED this 1 7 th day of January , 2020 , in

Tallahassee, Leon County, Florida.

LISA SHEARER NELSON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 1 7 th day of January , 2020 .

ENDNOTE S

1/ The timing of the Amended Petition is significant, because

section 120.56(3)(a) provides that a substantially affected

person may seek an administrative determination of the

invali dity of an existing rule at any time during the existence

of the rule. If Petitioner had not amended her Petition to

include the challenge to the Challenged Rule prior to the most

recent amendments to the rule, there would be no jurisdiction to

consider t he challenge. Petitioner (or at least, Petitioner’s

counsel) in all likelihood knew that the Division was in the

process of amending rule 61D - 6.011. All that matters is that

the Amended Petition was filed before the most recent amendment

became effective .

2/ In a way, Petitioner’s argument that the Division “concealed”

this information demonstrates the fallacy in her position that

the Model Stacking Rule was part of rule 61D - 6.011. Section

120.54(1)(i) expressly requires that the full text of any

inco rporated material must be made available for free public

access through an electronic hyperlink from the rule making

reference to it. The Model Stacking Rules clearly are not so

provided. While the Challenged Rule is readily available, the

reference Peti tioner claims is controlling is not, because it is

not part of the rule.

3/ It is noted that the most recent version of rule 61D - 6.011

does not incorporate the ARCI Model Stacking Rule, but includes

the substantive language from tha t rule in its text at

paragraph (4) of the rule. The most recent version also removes

the language in subsection (3) that stated, “[t]he penalties

corresponding to the classification of a substance, provided by

the incorporated document in subsection (2) of this rule, shall

be imposed . . .” and instead states, “[t]he penalties corresponding to the drug or medication classification, as provided in the incorporated Classification and Penalty Guidelines, shall be imposed . . . .”

4/ ory pages, The ARCI Document comprises several introduct

numbered i through vii, followed by pages numbered 1 through 32.

At deposition, the agency representative stated that the

Division of Pari - Mutuel Wagering adopted “all 32 pages,” which

resulted in Petitioner claiming in the Second Amended Petit ion

that the Division did not adopt the entire document. That

argument was withdrawn during the motion hearing.

COPIES FURNISHED:

David S. Romanik, Esquire

David S. Romanik, P.A.

2355 Southeast 5th Street

Ocala, Florida 34471

(eServed)

Raymond Freder ick Treadwell, General Counsel

Office of the General Counsel

Department of Business and Professional Regulation

2601 Blair Stone Road

Tallahassee, Florida 32399 - 2202

(eServed)

Jason Walter Holman, Esquire

Department of Business and Professional Regulat ion

Division of Pari - Mutuel Wagering

2601 Blair Stone Road

Tallahassee, Florida 32399 - 2202

(eServed)

James A. Lewis, Esquire

Department of Business and Professional Regulation

Division of Pari - Mutuel Wagering

2601 Blair Stone Road

Tallahassee, Florid a 32399 - 2202

(eServed)

Megan S. Silver, Esquire

Department of Business and Professional Regulation

2601 Blair Stone Road

Tallahassee, Florida 32399 - 2022

(eServed)

Johnny P. ElHachem, Esquire

Department of Business and Professional Regulation

Division of Pari - Mutuel Wagering

2601 Blair Stone Road

Tallahassee, Florida 32399

(eServed)

Louis Trombetta, Director

Department of Business and Professional Regulation

Division of Pari - Mutuel Wagering

2601 Blair Stone Road

Tallahassee, Florida 32399 - 2202

(eS erved)

Halsey Beshears, Secretary

Department of Business and Professional Regulation

2601 Blair Stone Road

Tallahassee, Florida 32399 - 2202

(eServed)

Ken Plant e , Coordinator

Joint A dministrative Procedure s Committee

Room 680, Pepper Building

111 West Madison Street

Tallahassee, Florida 32399 - 1400

(eServed)

Ernest Reddick, Program Administrator

Anya Grosenbaugh

Florida Administrative Code & Register

Department of State

R. A. Gray Building

500 South Bronough Street

Tallahassee, Florida 32399 - 0 250

(eServed)

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 Proced ure. Such proceedings are commenced by

filing the original notice of administrative appeal 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 a ny 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.