The purpose of this rule amendment is to update procedures for hearings before stewards with the goal of streamlining certain enforcement actions, including equine drug positive cases, against licensees. The rule amendment ....

 

DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION

Division of Pari-Mutuel Wagering

RULE NOS.:RULE TITLES:

61D-3.001Procedures for Stewards’ Hearings.

61D-3.0015Jai Alai Game Infractions

61D-3.002Appeal Procedures

61D-3.003Stay of Stewards’/Judges’ Penalty

61D-3.004Payment of Fines

PURPOSE AND EFFECT: The purpose of this rule amendment is to update procedures for hearings before stewards with the goal of streamlining certain enforcement actions, including equine drug positive cases, against licensees. The rule amendment is also intended to provide clarity to procedures related to stewards’ hearings. Rules 61D-3.002, 3.003, and 3.004, F.A.C., will be repealed. This proposed rule is a continuation of the rulemaking began on November 23, 2020 with a Rule Development and continued with a Proposed Rule, regarding which a hearing was held on December 16, 2020. The comments from that rulemaking record and the related hearing transcript have been taken into account when preparing to propose these rules; and they are hereby made part of the record of this Proposed Rule and the subsequent rule promulgation process directed toward Rule Adoption.

SUMMARY: Guidelines surrounding Board of Stewards procedures will be encapsulated in Rule 61D-3.001, F.A.C. Guidelines surrounding Jai Alai Game Infractions will be encapsulated in Rule 61D-3.0015, F.A.C.

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.

The Agency has determined that the proposed rule is not expected to require legislative ratification based on the statement of estimated regulatory costs or if no SERC is required, the information expressly relied upon and described herein: the economic review conducted 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: 120.80(4)(a), 550.0251(3), 550.2415(3),(12) FS.

LAW IMPLEMENTED: 120.80(4)(a), 550.0251, 550.1155, 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

 

Substantial Rewording of Rule 61D-3.001 Follows. See Florida Administrative Code for Present Text.

61D-3.001 Procedures for Stewards’ Hearings

(1) Hearings Conducted by a Board of Stewards:

(a) All proceedings for alleged violations indicated in subsection (1)(b) of this rule shall be heard by a Board of Stewards unless the division indicates in its administrative complaint that it is seeking revocation of a licensee’s pari-mutuel license or the Board of Stewards relinquishes jurisdiction as required by the Florida Administrative Code and/or Florida Statutes.

(b) Allegations of the following violations shall be heard by a Board of Stewards:

1. Horse riding and harness riding actions in violation of Chapter 550, F.S.

2. Application and usage of drugs and medication to horses in violation of Chapter 550, F.S.

3. Maintaining or possessing any device which could be used for the injection or other infusion of a prohibited drug to horses in violation of Chapter 550, F.S.

4. Suspensions under reciprocity agreements between the Division of Pari-Mutuel Wagering and regulatory agencies of other states involving horse racing.

5. Assault or other crimes of violence on premises licensed for horse racing.

6. Prearranging the outcome of any pari-mutuel horse racing event.

(c) Board of Stewards Composition: Prior to each steward’s hearing for an alleged violation of Florida Statutes and/or Florida Administrative Code, the division shall select three stewards to serve as the Board of Stewards. At least one steward on each Board of Stewards shall be a steward the division employs. Each horseracing permitholder shall designate at least two stewards they employ as eligible to serve on the Board of Stewards. If one or more of a permitholder’s designated stewards are unavailable for a hearing, the division shall fill any vacancy on the Board of Stewards with a steward the division employs.

(d) Conflict of Interest: The permitholder shall not employ a steward in any other capacity or assign duties of other employees to a steward.

(2) Procedures Applicable to Hearings by a Board of Stewards:

(a) Service of an Administrative Complaint: Service of an administrative complaint by the division marks the commencement of the administrative action. Service of an administrative complaint shall be made by either personal service on the respondent, certified mail to the respondent’s last known address of record with the division, or electronic mail to the respondent’s last known email address of record with the division. Each licensee of the division is responsible for notifying the division in writing of any changes to the licensee’s mailing address and electronic mailing address within ten days.

(b) Service of Notices of Stewards’ Hearing:

1. The time and place for a stewards’ hearing shall be included in a document titled “Notice of Stewards’ Hearing,” which shall be served on all named parties at least five business days prior to the hearing, unless otherwise agreed to by the named parties.

2. Each Notice of Stewards’ Hearing shall contain: a file number; the name and address of the respondent; a statement of any statute and/or rule alleged to have been violated; the date and time of the hearing; and the physical address or instructions for telephone conference or video conference attendance at the hearing. The division steward shall determine whether a stewards’ hearing is to be held in person, by telephone, or by video conference.

3. Any interested person who fails to attend a duly noticed hearing, either in person or through representation, waives their right to contest the outcome of the hearing.

(c) Conduct of Hearings Before a Board of Stewards

1. The division shall have an opportunity to present to the Board of Stewards the undisputed facts of the alleged violation and any evidence of mitigation or aggravation for purposes of deciding a penalty.

2. All parties shall have an opportunity to present evidence and witnesses regarding mitigation for purposes of deciding a penalty. All witnesses shall be sworn in by a member of the Board of Stewards and are subject to examination, cross-examination, and questioning by any member of the Board of Stewards.

3. All parties shall have an opportunity to present legal arguments to the Board of Stewards, including interpretation of applicable division rules and statutes.

(d) General Provisions:

1. Hearings and Records: All hearings before a Board of Stewards shall be conducted in person, by telephone, or by video conference. The division steward(s) shall assure that a record of the proceedings is preserved. Any named party to a hearing may, at his/her own expense, provide a certified court reporter. Any named party who wishes to make a written transcript of the recorded testimony shall request a copy of the recorded testimony and transcribe the same at his/her own expense.

2. Continuances: The division steward shall grant a continuance of a hearing for good cause shown. Requests for continuance shall be made by motion.

3. Computation of Time: In computing any period of time allowed by this rule chapter, the day of the act from which the period of time begins to run shall not be included. The last day of the period shall be included unless it is a Saturday, Sunday, or legal holiday, in which event the period shall run until the end of the next day which is not a Saturday, Sunday, or legal holiday. When the period of time allowed is less than 7 days, intermediate Saturdays, Sundays, and legal holidays shall be excluded in the computation. As used in these rules, legal holiday means those days designated in Section 110.117, F.S

4. Motions: All requests for relief following service of an administrative complaint shall be by motion. All motions shall be in writing unless made on the record during a hearing, and shall fully state the action requested and the grounds relied upon. The original written motion shall be filed with the Board of Stewards, unless otherwise indicated by this rule. On matters pending before it, the Board of Stewards shall conduct such proceedings deemed necessary to dispose of issues raised by the motion. The division steward, with input from the other stewards comprising the Board of Stewards, shall issue orders resolving pending motions before the Board of Stewards.

5. Disqualification: Unless good cause is shown, all motions for disqualification of stewards shall be received by the division director in writing at least three days prior to the date scheduled for hearing. The division director shall grant a disqualification of a steward for good cause shown.

6. Authority to Negotiate Settlement: Stewards are authorized to discuss cases of which they have jurisdiction with trainers and trainers’ legal representatives in an effort to negotiate a settlement between the parties.

7. Permitholder Rule Violations: A steward employed by the division shall not sit in judgment of a matter pending before the permitholders’ stewards that is based solely upon any rule of the permitholder.

8. Documents: Upon request to the Board of Stewards, any named party shall be entitled to obtain copies of all exhibits or materials any other party plans to rely upon during the hearing. A named party requesting production shall pay the actual cost of production of such material. A named party shall also be entitled to the names and addresses of all witnesses and investigators with information relevant to an alleged violation to be heard by the stewards.

9. Representation: A named party in any proceeding before the Board of Stewards may be represented by an attorney admitted to practice law in Florida or by any qualified representative as defined in Rule 28-106.106, F.A.C., who agrees to comply with the requirements of Rule 28-106.107, F.A.C. Rule 28-106.106, F.A.C. is incorporated herein by reference and can be located at https://www.flrules.org/Gateway/reference.asp?No=Ref-XXXXX. Rule 28-106.107, F.A.C. is incorporated herein by reference and can be located at https://www.flrules.org/Gateway/reference.asp?No=Ref-XXXXX. The division steward, with input from the other stewards comprising the Board of Stewards, shall determine if an individual is able to serve as a qualified representative pursuant to the criteria identified in Rule 28-106.106, F.A.C., and disqualify an individual from serving as a qualified representative if such individual engages in conduct described in Rule 28-107.107(3), F.A.C. After written notice of appearance that a named party is being represented by an attorney or qualified representative, all communications concerning the case shall be made to the attorney or qualified representative, and the attorney or qualified representative shall be entitled to exercise the rights granted to the party under these rules.

10. Presentation of Evidence:

a. After commencement of a proceeding, named parties may obtain relevant discovery regarding mitigation and/or aggravation through the means and in the manner provided in Rules 1.280 through 1.410, Florida Rules of Civil Procedure.

b. Each named party shall have the right to present evidence relevant to the issues; to cross-examine opposing witnesses; to impeach any witness regardless of which party first called him to testify; and to rebut the evidence presented against it.

c. Any relevant evidence shall be admitted if it is the sort of evidence on which reasonably prudent persons are accustomed to rely on in the conduct of their affairs. Irrelevant and unduly repetitious evidence shall be excluded.

11. Waiver of Hearing: At any time prior to a hearing, a respondent may waive their right to a hearing in writing. If a respondent and all named intervenors waive their right to a hearing, the division steward shall enter a recommended order based on the allegations in the administrative complaint and all applicable Florida rules and statutes.

(e) Division Counsel: The division is a party to a proceeding before the Board of Stewards pursuant to this rule and will be allowed to be represented by counsel.

(3) Resolution of Proceedings:

(a) Recommended Orders:

1. The division steward, with input from the other stewards comprising the Board of Stewards, shall issue a determination in the form of a recommended order.

2. A recommended order shall be entered within 14 days after the hearing or within 14 days of a waiver of hearing by the respondent and all named intervenors. The order shall include: a caption; the time and place of any hearing that was held; findings of fact; a statement of any rule or statute violated; any mitigating or aggravating factors considered; and the details of the penalty recommended, including the length of any suspension, the amount of any fine imposed for each violation, and any other penalty recommended.

3. The penalty recommended shall be determined by the members of the Board of Stewards selected to hear the alleged violation. Although a division steward may receive input from the permitholder’s stewards, a division steward holds final decision-making authority as it relates to determining violations of the division’s rules and the penalty recommended.

4. Any party may file written objections to a Board of Stewards’ recommended order within 10 days of a recommended order being filed. Written objections shall be filed with the division. Objections shall identify the disputed portion of the recommended order by page number or paragraph and shall identify the legal basis for the objection.

(b) Imposition of a Final Order: The division shall enter a final order within 45 days of a recommended order if no party files an objection or within 90 days of a recommended order if there are any filed objections. When rejecting or modifying a conclusion of law or interpretation of administrative rule, the division must state with particularity its reasons for rejecting or modifying such conclusion of law or interpretation of administrative rule and must make a finding that its substituted conclusion of law or interpretation of administrative rule is as or more reasonable than that which was rejected or modified. Rejection or modification of conclusions of law may not form the basis for rejection or modification of findings of fact. The division may not reject or modify the findings of fact unless the division first determines from a review of the entire record, and states with particularity in the order, that the findings of fact were not based upon competent substantial evidence or that the proceedings on which the findings were based did not comply with essential requirements of law. The division may accept the recommended penalty in a recommended order, but may not reduce or increase it without a review of the complete record and without stating with particularity its reasons therefor in the order.

(c) Consent Order: If all named parties agree, the division steward may attempt to resolve the case by facilitating a settlement agreement between the parties in the form of a consent order signed by the parties. Such a consent order does not become a final order of the division unless signed by the director of the division. If the division director rejects a proposed consent order, the proceeding shall continue with the process identified in Rule 61D-3.001(3), F.A.C.

(4) Disputes of Material Fact: The Board of Stewards does not have jurisdiction to hear cases involving genuine issues of material fact. For purposes of this rule, a material fact is a fact that is essential to the determination of whether the respondent committed the alleged violation. Once a disputed issue of material fact is presented, the Board of Stewards must relinquish jurisdiction over the proceeding back to the division to be governed by Section 120.57(1), F.S., and referred to the Division of Administrative Hearings.

(5) Payment of Penalties and Appeals:

(a) Payment of Penalties: All administrative fines imposed by final order pursuant to this rule must be paid within 30 days of the issuance of the final order unless the final order indicates a longer time frame or an appeal has been filed by a named party. All administrative fines pursuant to this rule must be paid within 15 days of the resolution of the appeal.

(b) All administrative fines imposed as a result of a proceeding conducted pursuant to this rule shall be deposited into a Board of Relief fund established by a pari-mutuel permitholder.

(c) Appellate Rights: A named party has the right to judicial review as specified in Section 120.68, F.S., following the imposition of a final order by the division.

(6) Return of Purse:

(a) In order for the return of a purse to be ordered by the division upon the finding of a violation of Section 550.2415, F.S., the division shall state in the administrative complaint that such a penalty may be imposed. The division shall also provide notice to interested persons as required in subsection (2) below.

(b) Rights of Interested Persons or Entities:

1. For purposes of this rule, “interested persons” means any “person,” as defined by Sections 120.52(14) and 1.01(3), F.S., whose substantial interests will be affected by the proposed agency action.

2. Notice of a Proceeding to Interested Persons: Notice of a violation of Section 550.2415, F.S., where return of a purse has been identified in the administrative complaint as a potential penalty, shall be publicly posted at http://www.myfloridalicense.com/DBPR/pari-mutuel-wagering/notice-of-proceeding/. Such notice shall include, at a minimum, the following:

a. The name of the horse that is the subject of the administrative complaint;

b. The date of the race that the alleged violation occurred;

c. The number of the race and performance which the alleged violation occurred;

d. The racetrack where the alleged violation occurred;

e. A link to the copy of the filed administrative complaint at issue; and

f. The date which the information was publicly posted on the website.

(c) In a proceeding where the division has followed the requirements in subsections (1) and (2) above, the recommended order issued shall provide a recommendation to the division regarding whether the return of a purse shall be imposed.

(d) Notice of Hearing to Owners: Prior to a stewards’ hearing for an alleged violation of Section 550.2415, F.S., where return of a purse has been identified in the administrative complaint as a potential penalty, the stewards shall give at least five business days’ notice to each owner listed in the racing program on the date of the race who may be adversely affected of the date, time, and location of the hearing. Such notice shall be mailed to the owners’ last known address on record with the division and sent by electronic mail to any known electronic mail addresses on file.

(e) The return of a purse shall be imposed in accordance with the recommended penalties for licensed owners in the Classification and Penalty Guidelines incorporated by reference in Rule 61D-6.011, F.A.C. If any aggravating or mitigating factors listed in Rule 61D-6.011(5), F.A.C. are found, the recommended penalty may be adjusted accordingly. A recommended order shall identify any facts found to provide evidence of aggravating or mitigating factors which supported an adjustment to the recommended penalty. Any party may file written objections to a recommended order that recommends redistribution of a purse within 10 days of a recommended order being filed. Written objections shall be filed with the division. Objections shall identify the disputed portion of the recommended order by page number or paragraph and shall identify the legal basis for the objection. When rejecting or modifying a conclusion of law or interpretation of administrative rule, the division must state with particularity its reasons for rejecting or modifying such conclusion of law or interpretation of administrative rule and must make a finding that its substituted conclusion of law or interpretation of administrative rule is as or more reasonable than that which was rejected or modified. Rejection or modification of conclusions of law may not form the basis for rejection or modification of findings of fact. The division may not reject or modify the findings of fact unless the division first determines from a review of the entire record, and states with particularity in the order, that the findings of fact were not based upon competent substantial evidence or that the proceedings on which the findings were based did not comply with essential requirements of law. The division may accept the recommended penalty in a recommended order, but may not reduce or increase it without a review of the complete record and without stating with particularity its reasons therefor in the order.

(f) At any time in a proceeding prior to a final hearing, an interested person may move to intervene as directed and authorized by Chapter 120, F.S. and Rule 28-106.205, F.A.C. A motion to intervene shall be ruled on by the division steward in accordance with Chapter 120, F.S. and Rule 28-106.205, F.A.C. Rule 28-106.205, F.A.C. is incorporated herein by reference and can be located at https://www.flrules.org/Gateway/reference.asp?No=Ref-XXXXX. An interested person that successfully intervenes in a proceeding shall have all of the rights of a named party in a proceeding.

(g) In the event an administrative complaint has been filed alleging a violation of Section 550.2415, F.S., where return of the purse may be ordered, any purse money which has not been disbursed in connection with the horse identified in the administrative complaint shall be placed on account with the permitholder’s comptroller until resolution of all proceedings.

(h) In the event the division orders redistribution of a purse, the division shall order such purse be returned to the awarding permitholder for redistribution to the remaining eligible race participants pursuant to the permitholder’s internal regulations.

(i) A permitholder shall have written rules, which may be reviewed upon request by any member of the public or employee of the division, regarding the process for redistributing purses returned to the permitholder.

Rulemaking Authority 120.80(4)(a), 550.0251(3), 550.2415(3),(12) FS. Law Implemented 120.80(4)(a), 550.0251, 550.1155, 550.2415 FS. History–New 10-20-96, Amended 12-15-97, 4-12-06, 6-26-11, ___________.

 

61D-3.0015 Jai Alai Game Infractions

Jai Alai game infractions shall be decided by the court judges pursuant to a permitholder’s house rules. Any alleged violation of Chapter 550, F.S., at a jai alai fronton will be governed by Sections 120.569 and 120.57, F.S.

Rulemaking Authority 120.80(4)(a), 550.0251(3) FS. Law Implemented 120.80(4)(a), 550.0251 FS. History–New______.

 

 

61D-3.002 Appeal Procedures

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, Repealed ________.

 

61D-3.003 Stay of Stewards’/Judges’ Penalty

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

 

61D-3.004 Payment of Fines

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, 550.2415 FS. History–New 10-20-96, Amended 1-5-98, 4-12-06, 6-26-11, Repealed ________.

 

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: Julie I. Brown, Secretary, Department of Business and Professional Regulation

DATE PROPOSED RULE APPROVED BY AGENCY HEAD: February 25, 2021

DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAR: March 9, 2021