To update and clarify the penalty guidelines for drug violations in horses.

 

DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION

Division of Pari-Mutuel Wagering

RULE NO.:RULE TITLE: 

61D-6.011Penalty Guidelines for Class I-V Drug Violations in Horses

PURPOSE AND EFFECT: To update and clarify the penalty guidelines for drug violations in horses.

SUMMARY: The proposed rulemaking amends Rule 61D-6.011, as it relates to drug violations in horses.

SUMMARY OF STATEMENT OF ESTIMATED REGULATORY COSTS AND LEGISLATIVE RATIFICATION:

The Agency has determined that this will not have an adverse impact on small business or likely increase directly or indirectly regulatory costs in excess of $200,000 in the aggregate within one year after the implementation of the rule. A SERC has not been prepared by the Agency.

Any person who wishes to provide information regarding a statement of estimated regulatory costs, or provide a proposal for a lower cost regulatory alternative must do so in writing within 21 days of this notice.

RULEMAKING AUTHORITY: 550.0251(3), 550.2415(12) FS.

LAW IMPLEMENTED: 550.0251, 550.2415 FS.

IF REQUESTED WITHIN 21 DAYS OF THE DATE OF THIS NOTICE, A HEARING WILL BE SCHEDULED AND ANNOUNCED IN THE FAR.

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

 

THE FULL TEXT OF THE PROPOSED RULE IS:

 

61D-6.011 Penalty Guidelines for Class I-V Drug Violations in Horses.

(1) The list of Drugs/Substances and associated Trade Names, Drug Class, and Penalty Class contained in the “Alphabetical Substance List” in the Uniform Classification Guidelines for Foreign Substances, Version 8.0, revised December 2014, by the Association of Racing Commissioners International, Inc., is hereby incorporated by reference.  An electronic copy is available at https://www.flrules.org/Gateway/reference.asp?No=Ref-XXXX.
(2) The penalty for a violation of Section 550.2415, Florida Statutes, for impermissibly medicating a racing horse, or the finding of a prohibited substance in a racing horse, shall be based on the following penalty schedule and consideration of, if any, mitigating or aggravating factors:
(a) Penalty Class A substances:
1. First violation	Suspension – Minimum of one-year absent mitigating factors, maximum of three-years based on aggravating factors; and Fine – Minimum of $10,000 or 10% of the total purse, whichever is greater, absent mitigating factors.  The presence of aggravating factors may be used to impose a maximum fine of 25% of the total purse.
2. Second violation	Suspension – Minimum of three-years absent mitigating factors, maximum of license revocation and ineligibility to reapply for a three-year period based on aggravating factors; and Fine – Minimum of $10,000 or 25% of the total purse, whichever is greater, absent mitigating factors.  The presence of aggravating factors may be used to impose a maximum fine of 50% of the total purse.
3. Third or subsequent violation	Suspension – Minimum of five-years absent mitigating factors, maximum of license revocation and ineligibility to reapply for a five-year period based on aggravating factors; and Fine – Minimum of $10,000 or 50% of total purse, whichever is greater, absent mitigating factors.  The presence of aggravating factors may be used to impose a maximum fine of 100% of the total purse.
(b) Penalty Class B substances, and for the presence of more than one NSAID if prohibited as provided in Rule 61D-6.008(3), Florida Administrative Code:
1. First violation	Suspension – Minimum of fifteen days absent mitigating factors, maximum of sixty days based on aggravating factors; and Fine – Minimum of $500 absent mitigating factors.  The presence of aggravating factors may be used to impose a maximum fine of $1,000.
2. Second violation	Suspension – Minimum of thirty days absent mitigating factors, maximum of one hundred eighty days based on aggravating factors; and Fine – Minimum of $1,000 absent mitigating factors.  The presence of aggravating factors may be used to impose a maximum fine of $2,500.
3. Third or subsequent violation	Suspension – Minimum of sixty days absent mitigating factors, maximum of one-year based on aggravating factors; and Fine – Minimum of $2,500 absent mitigating factors.  The presence of aggravating factors may be used to impose a maximum fine of $5,000 or 5% of the total purse, whichever is greater.
(c) Penalty Class C substances:
1. First violation	Minimum fine of $1,000 absent mitigating circumstances;
2. Second violation	Minimum fine of $1,500 and fifteen day suspension absent mitigating circumstances;
3. Third or subsequent violation	Minimum fine of $2,500 and thirty day suspension absent mitigating circumstances.
(d) Penalty Class D substances, impermissible amounts of NSAIDs as provided in Rule 61D-6.008(3), Florida Administrative Code, and penalties for Furosemide found at a concentration greater than 100 ng/ml of serum or plasama or no furosemide when identified as having been administrered:
1. First violation	Minimum of a written warning to a maximum fine of $500;
2. Second violation	Minimum of a written warning to a maximum fine of $750;
3. Third or subsequent violation	Minimum fine of $500 to a maximum fine of $1,000.

 

(1) The penalties in this rule shall be imposed when the stewards or the Division finds that the following substances have been identified by the state laboratory in a urine sample or blood sample collected from a horse participating in a pari-mutuel event:

(a) Any medication listed in subsection 61D-6.008(2), F.A.C.
1. First violation of this chapter	$500 to $1,000 fine and suspension of license zero to 15 days;
2. Second violation of this chapter	$1,000 to $2,500 fine and suspension of license zero to 60 days, or revocation of license;
3. Third violation of this chapter	$2,500 to $5,000 fine and suspension of license zero to 180 days, or revocation of license.
(b) Any medication that: 1. Is not approved for veterinary use in the United States by the Food and Drug Administration; 2. Cannot be detected by the state laboratory in a urine or blood sample unless the medication was administered within 24 hours of the race; or 3. Is detected in urine or blood concentrations that indicate a level of dosage that would constitute a threat to the health and safety of the horse.
a. First violation of this chapter	$1,000 to $2,500 fine and suspension of license 60 days to one year, or revocation of license;
b. Any subsequent violation of this chapter	$2,500 to $5,000 fine and revocation of license.

(2) The penalty for any medication or drug which is not described in subsection (1) above shall be based upon the classification of the medication or drug found in  the Uniform Classification Guidelines for Foreign Substances, revised December 2014, as promulgated by the Association of Racing Commissioners International, Inc., which is hereby incorporated and adopted herein by reference, https://www.flrules.org/Gateway/reference.asp?No=Ref-06400, www.myfloridalicense.com/dbpr/pmw or by contacting the Department of Business and Professional Regulation, 2601 Blair Stone Road, Tallahassee, Florida 32399.

The penalty schedule shall be as follows:

(a) Class I substances:
1. First violation of this chapter	$3,000 to $5,000 fine and suspension of license 90 days to one year, or revocation of license;
2. Second violation of this chapter	$4,000 to $5,000 fine and suspension of license of no less than one year, or revocation of license.
3. Third or subsequent violation of this chapter	$5,000 to $10,000 fine and revocation of license.
(b) Class II substances:
1. First violation of this chapter	$250 to $1,000 fine and suspension of license zero to 180 days;
2. Second violation of this chapter	$500 to $1,000 fine and suspension of license of no less than 180 days, or revocation of license;
3. Third or subsequent violation of this chapter	$1,000 to $5,000 fine and suspension of license of no less than one year, or revocation of license.
(c) Class III substances:
1. First violation of this chapter	$300 to $500 fine;
2. Second violation of this chapter	$500 to $750 fine and suspension of license zero to 30 days, or revocation of license;
3. Third or subsequent violation of this chapter	$750 to $1,000 fine and suspension of license zero to 180 days, or revocation of license.
(d) Class IV or V substances:
1. First violation of this chapter	$100 to $250 fine;
2. Second violation of this chapter	$250 to $500 fine and suspension of license zero to 10 days;
3. Third or subsequent violation of this chapter	$500 to $1,000 fine and suspension of license zero to 60 days.

(3) Substances or drugs not included in the “Alphabetical Substance List” incorporated by reference in subsection (1) are treated as Penalty Class A substances.  This subsection does not apply to the list of “Non-Classified Substances” contained in the Uniform Classification Guidelines for Foreign Substances, Version 8.0, revised December 2014, by the Association of Racing Commissioners International, Inc., is hereby incorporated by reference.  An electronic copy is available at https://www.flrules.org/Gateway/reference.asp?No=Ref-XXXX.

(3) The Division may consider mitigation or aggravation to deviate from these penalty guidelines.

(4) The Division may consider mitigation or aggravation to deviate from these penalty guidelines. Circumstances which may be considered for the purposes of mitigation or aggravation of any penalty shall include the following:

(a) The impact of the offense to the integrity of the pari-mutuel industry.

(b) The danger to the public and/or racing animals.

(c) The number and date of prior violations of any penalty class in Florida and any other jurisdiction.

(d)(c) The number of repetitions of offenses.

(e)(d) The time periods between offenses.

(f)(e) The number of complaints filed against the licensee or permitholder, which have resulted in prior discipline.

(g)(f) The length of time the licensee or permitholder has practiced.

(h)(g) The deterrent effect of the penalty imposed.

(i)(h) Any efforts at rehabilitation.

(j)(i) Any other relevant mitigating or aggravating circumstances.

(5) A violation of Section 550.2415, Florida Statutes, may require the full or partial return of the purse, prize, or award earned by the horse in the race at issue.  The amount of the purse, prize, or award required to be returned will be based on the penalty class of the found substance and the mitigating and aggravating factors in subsection (4) of this rule. An owner or trainer who fails to return the purse, prize, or award for redistribution within 60 days of the order is in violation of this rule and may be subject to further administrative action. Absent mitigating circumstances, the stewards or the Division shall order the return of any purse, prize, or award from any pari-mutuel event for redistribution when a postive test for a drug or medication described in paragraphs (1)(a), (1)(b), (2)(a), or (2)(b) is reported by the state laboratory and confirmed through the hearing process.

(6) The stewards or the Division may order the return of any purse, prize, or award for redistribution when the positive test of a drug or medication reported by the state laboratory is not described in paragraphs (1)(a), (1)(b), (2)(a), or (2)(b) of this rule. In the event the stewards or Division orders the return of the purse, prize, or award for redistribution as described in this subsection, the reason(s) for the redistribution shall be provided in writing.

(7) An owner or trainer who fails to return the purse, prize, or award for redistribution within 60 days of the order is in violation of this rule and may be subject to further administrative action.

(6)(8) Nothing in this rule modifies the provisions of Rule 61D-6.008 or 61D-3.002, F.A.C., or rules promulgated under Section 550.2415, F.S.

Rulemaking Authority 550.0251(3), 550.2415(12) FS. Law Implemented 550.0251, 550.2415 FS. History–New 1-5-98, Amended 2-8-01, 3-4-07, 6-26-11, 1-10-16,                        .

 

NAME OF PERSON ORIGINATING PROPOSED RULE: Bryan Barber, Division of Pari-Mutuel Wagering, [e-mail], 2601 Blair Stone Rd., Tallahassee, FL 32399, [phone].

NAME OF AGENCY HEAD WHO APPROVED THE PROPOSED RULE: Jonathan Zachem, Secretary, Department of Business and Professional Regulation

DATE PROPOSED RULE APPROVED BY AGENCY HEAD: January 31, 2018

DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAR: July 11, 2016 (v.42, n. 133)