Emergency Procedures for Collecting Samples from Racing Greyhounds

 

DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION

Division of Pari-Mutuel Wagering

RULE NO.:RULE TITLE:

61DER18-1Emergency Procedures for Collecting Samples from Racing Greyhounds

SPECIFIC REASONS FOR FINDING AN IMMEDIATE DANGER TO THE PUBLIC HEALTH, SAFETY OR WELFARE: The Division of Pari-Mutuel Wagering (“Division”) is statutorily mandated to test for and prosecute the use of prohibited medications and substances which can cause injury or death to racing greyhounds as well as compromise the integrity of the races conducted. On December 22, 2017, the Division of Administrative Hearings (“DOAH”) issued a Partial Summary Final Order in case number 17-5238RU which found some of the Division’s sample collection procedures were un-adopted rules. Although the Division rejects the legal findings in the Partial Summary Final Order, the Division adopted Emergency Rule 61DER17-2, F.A.C., on December 27, 2017, to ensure the greyhound races that occurred during the pendency of any legal challenges occurred under safe conditions. Emergency Rule 61DER17-2, F.A.C., currently prescribes the Division’s procedures to collect the racing greyhound samples used to test for the presence of prohibited substances.

On January 29, 2018, the Division published Proposed Rule 61D-6.0052, F.A.C., which sought to formally amend and clarify the greyhound sample collection process. On February 16, 2018, a petition challenging Proposed Rule 61D-6.0052, F.A.C., was filed with DOAH in case number 18-0915RP. The Final Order issued in that case, on October 1, 2018, found substantive portions of the newly proposed sample collection procedures constituted an invalid exercise of delegated legislative authority.

On November 30, 2018, the Division determined it must withdraw Proposed Rule 61D-6.0052, F.A.C. in whole. On December 3, 2018, the Division re-opened Proposed Rule 61D-6.0052, F.A.C., for rule development. The Division subsequently published a Notice of Proposed Rule on December 4, 2018, in order to formally adopt racing greyhound sample collection procedures identical to this emergency rule.

An immediate danger exists which requires emergency action by the Division in order to protect the health, safety, and welfare of the numerous racing greyhounds scheduled to perform in the immediate future. At this time, there are over 150 performances scheduled in the month of December, over 300 performances scheduled in January, and over 300 performances scheduled in February. In other words, hundreds of racing greyhounds will be racing in the near future. Additionally, without this emergency rule there would be an immediate danger to the wagering public and the integrity of greyhound racing which the Division is mandated by Chapter 550, F.S., to regulate.

Based on the hundreds of performances scheduled, the Division fears an immediate danger to health, safety, and welfare of racing greyhounds, the wagering public and the integrity of racing as a whole will exist without this emergency rule.

REASON FOR CONCLUDING THAT THE PROCEDURE IS FAIR UNDER THE CIRCUMSTANCES:

The procedure used to adopt this emergency rule is fair under the circumstances. The Division previously published the greyhound sample collection procedures detailed in this emergency rule on December 4, 2018, when the Division filed the Notice of Proposed Rule for Proposed Rule 61D-6.0052, F.A.C., in the Florida Administrative Register. The Division has determined that this emergency rule will not have an adverse impact on small business and is not likely to directly or indirectly increase regulatory costs. Furthermore, the procedure used to adopt this emergency rule provides at least the procedural protection given by other statutes, the State Constitution, or the United States Constitution.

In addition, this emergency rule addresses the specific concerns delineated in DOAH final order 17-5238RU and 18-0915RP and shall only be effective while the Division follows the requirements of Chapter 120, F. S. to formally adopt Proposed Rule 61D-6.0052, F.A.C. As such, the Division is only taking action necessary to protect the public under the procedure used to adopt this emergency rule.

SUMMARY: Emergency Rule 61DER18-1, F.A.C., prescribes the procedures for collecting, sealing, storing, and shipping greyhound samples to the laboratory for analysis as well as clarifying the chain of custody procedures for confiscating prohibited drugs and other items. These changes address specific concerns identified by the administrative law judges and are a valid exercise of delegated legislative authority.

THE PERSON TO BE CONTACTED REGARDING THE EMERGENCY RULE IS: Bryan Barber, Division of Pari-Mutuel Wagering, [e-mail], 2601 Blair Stone Rd., Tallahassee, FL 32399, [phone].

 

THE FULL TEXT OF THE EMERGENCY RULE IS:

 

61DER18-1 Emergency Procedures for Collecting Samples from Racing Greyhounds

(1) In addition to the rules that exist under Rule 61D-6.005, Florida Administrative Code, the following procedures are promulgated under and emergency basis.

(2) Designating Greyhounds for Sampling—

Prior to the race, all greyhounds scheduled to race shall report to the detention enclosure for examination by an authorized representative of 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. An authorized division representative shall attempt to collect a urine sample from the first two greyhounds that urinate. If the authorized representative is not able to collect a sample from both of the first two greyhounds that urinate, they shall continue to attempt collecting a sample from the next greyhound, or greyhounds, that urinate until either they have collected a total of two samples or there are no other greyhounds urinating from which they can collect  a sample.

(3) 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 supplied 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, trainer of record or other authorized person to witness and/or sign the sample card shall not preclude the division from proceeding with sample analysis.

(4) 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 card’s unique identifier.

(c) Evidence tape shall be placed over both the sample container and lid on at least two sides.

(d) The authorized representative of the division that sealed the sample container shall initial the evidence tape on the sample container.

(5) Storing and Shipping of Samples—

(a) After being sealed and labeled, the samples shall be stored in a locked freezer in a restricted area that is accessible by only authorized representatives of the division until the time of shipment. Samples shall be stored in a frozen state.

(b) The samples shall be shipped in an insulated container and, 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 shipment 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 laboratory’s contracted common carrier.

(6) Authority of the Division—

(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 materials 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 improper 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 labels, medicinal compounds (natural or synthetic) or other materials shall be delivered to the laboratory under contract with the division for analysis.

(b) The division investigator or other authorized representative 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) Confiscated drugs, medications, compounds or other evidence shall be collected by an authorized representative of the division and sealed in an unused bag supplied by the division or its agent. The authorized representative of the division shall seal the bag opening with evidence tape and shall initial the evidence tape after sealing the bag. The authorized representative of the division shall label the bags collected with the collector’s name, the date of collection, the address or location where the evidence was collected, and, if there are multiple bags collected in the same location, the bags shall be numbered in sequential order. The sealed bag shall be stored in a locked area, cabinet or container accessible by only authorized representatives of the division. When necessary to determine the contents, the sealed evidence bag shall be sent to the laboratory under contract with the division for analysis.

(d) It is a violation of these rules for 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.  For such a violation, the division may impose any disciplinary penalties authorized by Chapter 550, F.S., or the rules promulgated thereunder.

Rulemaking Authority 550.0251(3), (11) 550.2415 (12) FS. Law Implemented 550.0251, 550.2415 FS. History-   New 12-17-18 ; Replaces 61DER17-2.

 

THIS RULE TAKES EFFECT UPON BEING FILED WITH THE DEPARTMENT OF STATE UNLESS A LATER TIME AND DATE IS SPECIFIED IN THE RULE.

EFFECTIVE DATE: December 17, 2018