61D-3.002. Appeal Procedures

(1) The stewards and division judge shall include in their decision a notice to the licensee of the licensee’s right to an appeal hearing before the division director or his/her designee. In addition, the stewards and division judge shall provide the licensee with the procedures and time limits for invoking the right to an appeal. All requests for an appeal must be submitted in writing or on Form DBPR PMW-3100, Request for Appeal of Stewards’/Judges’ Ruling, effective 3-4-07, adopted herein by reference, http://www.flrules.org/Gateway/reference.asp?No=Ref-00306, and can be obtained at www.myfloridalicense.com/dbpr/pmw or by contacting the Department of Business and Professional Regulation, 2601 Blair Stone Road, Tallahassee, Florida 32399. The appeal shall state in writing the reason the licensee believes the judge’s or stewards’ order should be reversed.

(2) Failure of the licensee to file a request for an appeal hearing within 10 days of the decision of the stewards or division judge constitutes a waiver of the right to an appeal.

(3) Upon receipt of an appeal, the division shall review the appeal and the record to determine whether a legitimate issue of law has been presented that would require an appeal hearing to be scheduled. The division shall not substitute its judgment for the judgment of the stewards or division judge as to a finding of fact or the weight and credibility of evidence in the record. The division shall issue an order affirming the stewards or division judge if an appeal that merely disputes findings of fact based upon evidence is received by the stewards or division judge. Appeal hearings shall be conducted in person, by telephone, or by other electronic means.

(4) In the event the stewards or division judge make a determination that there is a reasonable suspicion to believe that a violation of Section 550.2415, F.S., has occurred, or in the event of a positive test for a substance prohibited under Section 550.2415, F.S., any purse money in question which has not been disbursed shall be placed on account with the permitholder’s comptroller. In the event that any purse money has been distributed, all individuals to whom the purse money has been directly distributed shall place monies equal to the amount received from the purse in a segregated interest bearing account in a recognized financial institution, and shall notify the division of the location of the account. The monies shall remain in the account until final disposition of the case, at which time control of the monies shall be returned to the original individuals; or if a violation is proved, the monies shall be transmitted to the permitholder for redistribution.

(5) If the division determines that the division judge or stewards have exceeded their jurisdiction, departed from the essential requirements of law, or incorrectly applied law to facts, it shall void their decision and either enter a decision for the licensee or shall prosecute the alleged violation itself with the respondent receiving rights to an administrative hearing pursuant to Section 120.57, F.S.

(6) No appeal shall be filed solely for the purpose of delaying imposition of a penalty through a stay pending appeal pursuant to Rule 61D-3.003, F.A.C. If it becomes apparent that an appeal was sought solely to obtain a stay and delay the imposition of a penalty, the division shall issue an order dismissing the appeal and referring the case to the stewards or division judge to determine whether additional penalties should be imposed.

(7) Upon conclusion of the appeal hearing, the division director shall affirm or reverse the decision of the stewards/division judge with directions for an appropriate disposition of the case under the pari-mutuel statutes or rules.

Rulemaking Authority 120.80(4)(a), 550.0251(3), 550.2415(12) FS. Law Implemented 120.80(4)(a), 550.0251, 550.054, 550.1155 FS. History–New 10-20-96, Amended 1-5-98, 4-12-06, 6-26-11.