Emergency Drug and Penalty Guidelines for Racing Greyhounds

 

DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION

Division of Pari-Mutuel Wagering

RULE NO.:RULE TITLE:

61DER19-1Emergency Drug and Penalty Guidelines for 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 regulate, enforce and protect the health, safety and welfare of racing greyhounds from the administration of impermissible medications and/or prohibited substances in violation of Section 550.2415, F.S., which could cause injury or death to racing greyhounds and compromise the integrity of the races conducted.

On March 7, 2018, the Division of Administrative Hearings (“DOAH”) issued a Final Order in Charles F. McClellan and Natasha Nemeth vs. Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering, Case Number 17-5238RU (“Final Order”). The Final Order invalidated Rules 61D-6.007 and 61D-6.012, Florida Administrative Code, to the extent they failed to comply with the mandatory rulemaking requirements of Section 550.2415(7), Florida Statutes. The rules which were the subject of the Final Order concern permitted medications for racing greyhounds and penalty guidelines for Class I-V drug violations in greyhounds.

The Division appealed the Final Order, and the First District Court of Appeal (“DCA”) affirmed DOAH’s decision on March 29, 2019. The First DCA issued the mandate in case number 1D18-0128 on April 22, 2019. As a result of the First DCA’s affirmance of the Final Order, the Division is left without a rule in place to penalize trainers for the presence of prohibited substances and overages of permitted medications, drugs and naturally occurring substances in racing greyhounds. Emergency rulemaking is necessary to protect the health, safety and welfare of racing greyhounds that are in immediate danger without a rule in place.

An emergency rule is necessary to address the exigency and gravity of the present situation, until a new rule can be promulgated through formal rulemaking. At this time, there are approximately 419 performances (3,352 races) scheduled between the date of this notice and June 30, 2019. Without this emergency rule, the Division is concerned that racing greyhounds will be impermissibly medicated or drugged with a range of therapeutic and/or prohibited substances. These impermissible substances and/or concentrations of drugs would seriously compromise the health, safety, and welfare of racing greyhounds.

Additionally, without this emergency rule, trainers and owners might use prohibited substances to fix or alter the outcome of pari-mutuel races. As such, there would be an immediate harm to the wagering public and the integrity of greyhound racing, which the Division is mandated by Chapter 550, Florida Statutes, to protect.

Based on the approximately 3,352 races scheduled in the next 60 days alone, the Division must prevent this immediate danger to the health, safety, and welfare of racing greyhounds, and protect the wagering public and the integrity of racing as a whole by adopting 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 because following the Final Order the Division is left without a rule in place to penalize trainers for the administration of prohibited substances and/or concentrations of drugs in racing greyhounds. The Division is statutorily mandated to protect racing animals. It is essential to ensure as soon as possible that protections are in place to prevent trainers from administering prohibited substances and/or concentrations of drugs that would seriously compromise the health, safety, and/or welfare of racing greyhounds. 

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.

The Division intends to engage in formal rulemaking and has contemporaneously filed Notices of Rule Development for Rules 61D-6.007 and 61D-6.012, Florida Administrative Code. This emergency rule shall only be effective while the Division follows the requirements of Chapter 120, Florida Statutes, to adopt a formal rule. As such, this emergency rule takes only the action necessary to protect the public interest under the emergency procedure.

SUMMARY: Emergency Rule 61DER19-1, Florida Administrative Code, addresses the holdings of DOAH Final Order 17-5238RU, and prescribes a Drug and Substance Classifications System and Penalty Schedule, Testing Methodologies, Permitted Medications and Environmental Contaminants, Therapeutic Medications, Prohibited Substances and a Screening Limit for Prohibited Substances for Racing Greyhounds as required by the administrative law judge. These changes address specific concerns identified by the administrative law judge 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:

61DER19-1 Emergency Drug and Penalty Guidelines for Racing Greyhounds.

(1) Drug and Substance Classification System and Penalty Schedule for Drug Violations in Greyhounds.

(a) 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 greyhound participated in a race while impermissibly medicated or with a prohibited substance present in its  body. Nothing hereunder modifies the provisions promulgated under Section 550.2415, F.S. Any reference to a Commission within the incorporated document in subsection (1)(b) of this rule is not applicable because the State of Florida has not established a Racing Commission.

(b) The Division hereby incorporates by reference the classification system for drugs and substances and corresponding penalty schedule in the Uniform Classification Guidelines for Foreign Substances, version 8.0, revised December 2014, by the Association of Racing Commissioners International, Inc. (the “Classification and Penalty Guidelines”). An electronic copy is available at https://www.flrules.org/Gateway/reference.asp?No=Ref-06400.

(c) The penalties corresponding to the drug or medication classification, as provided in the incorporated Classification and Penalty Guidelines, shall be imposed when an animal has been impermissibly medicated or determined to have a prohibited substance present in its body. Penalties shall be imposed against racing greyhound trainers, pursuant to Rule 61D-6.002(1), F.A.C and Section 550.2415(2), F.S.

(d) The Division shall consider the following mitigating or aggravating factors to deviate from the penalties provided by the Classification and Penalty Guidelines:

1. The impact of the offense to the integrity of the pari-mutuel industry.

2. The danger to the public and/or racing animals.

3. The number and date of prior violations of any penalty class in Florida and any other jurisdiction.

4. The number of similar prior offenses.

5. The time period between offenses.

6. The number of complaints filed against the licensee or permitholder, which have resulted in prior discipline.

7. The length of time the licensee or permitholder has been licensed in Florida or any other jurisdiction.

(e) If a penalty within the Classification and Penalty Guidelines provides for a sanction in excess of the limitation contained in Section 550.2415(3)(a), F.S., the sanction imposed shall be reduced to an amount that does not exceed the statutory maximum limit.

(2) Testing Methodologies: Methodologies used to screen for and confirm the administration of medications, drugs, and naturally occuring substances in racing greyhounds shall be limited to the following: Immunoassay, Liquid Chromatography Mass Spectrometry (LCMS), Gas Chromatography Mass Spectrometry (GCMS), and/or Specific Gravity.

(3) Permitted Medications and Environmental Contaminants in Greyhounds: The following medications, drugs, naturally occuring substances, and other substances are permitted in racing greyhounds in the concentrations and under the conditions listed below:

(a) The administration of testosterone or testosterone-like substances, when used for the control of estrus in female racing greyhounds, is permitted at any prescribed concentration, subject to the following conditions:

1. Track veterinarians may administer injectable testosterone on the grounds of the permitholder to female racing greyhounds for the control of estrus.

2. Kennel owners may use their regular Florida licensed veterinarian or may enter into a collective agreement for the services of a Florida licensed veterinarian to administer injectable testosterone to female racing greyhounds for the control of estrus.

3.  The administration of oral testosterone shall be permitted provided it is validly prescribed and properly labeled.

4. Veterinarians that administer injectable or oral testosterone shall be responsible for maintaining security, inventory, and a retrievable record/log in accordance with the Drug Enforcement Agency (DEA) regulations pertaining to a Schedule III drug under the federal Controlled Substances Act and shall be accountable for all syringes and needles used therewith and their disposal in accordance with approved biomedical hazardous waste methods.

(b) Sulfa drug(s) is/are permitted to be administered at any prescribed concentration to a racing greyhound subject to the following conditions:

1. The racing greyhound is under the care of a veterinarian currently licensed pursuant to Chapters 474 and 550, F.S.; and

2. The sulfa drug(s) is/are prescribed by a veterinarian currently licensed pursuant to Chapters 474 and 550, F.S.; and

3. The sulfa drug(s) is/are not administered within 24 hours prior to the officially scheduled post time of the race.

(c) The following permitted substances at concentrations less than or equal to the following schedule under any condition of use shall not be a violation of Section 550.2415, F.S. In order to be considered a violation, the quantity of the substance found by the racing laboratory must exceed the specified concentration allowed plus the established measurement uncertainty value for that substance.

1. The detection of caffeine at a urinary concentration of 200 nanograms per milliliter; the measurement uncertainty in urine shall be 30 ng/mL.

2. The detection of theophylline and theobromine at a urinary concentration of 400 nanograms per milliliter; the measurement uncertainty in urine shall be 80 ng/mL for theophylline and 90 ng/mL for theobromine.

3. The detection of procaine at a urinary concentration of 2 micrograms per milliliter; the measurement uncertainty in urine shall be 0.3 µg/mL.

4. The detection of flunixin at a urinary concentration of 250 nanograms per milliliter; the measurement uncertainty in urine shall be 25 ng/mL.

(d) All measurement uncertainties identified in this rule are followed by  the University of Florida Racing Laboratory as of May 2, 2019. If a sample is diluted for testing, the measurement uncertainty is multiplied by the factor of dilution.

(e) All prescription medication, regardless of the method of administration, shall be safeguarded under lock and key when not being actively administered.

(4) Therapeutic Medication for Racing Greyhounds: Any and all findings above zero, under any condition of use, for the following therapeutic medications will be considered a violation of Section 550.2415, F.S.:

(a) Acepromazine [2-(1-hydroxyethyl) promazine sulfoxide].

(b) Albuterol.

(c) Betamethasone.

(d) Butorphanol.

(e) Clenbuterol.

(f) Dantrolene (5-hydroxydantrolene).

(g) Detomidine (carboxydetomidine).

(h) Dexamethasone.

(i) Diclofenac.

(j) Dimethyl sulfoxide (DMSO).

(k) Firocoxib.

(l) Glycopyrrolate.

(m) Isoflupredone.

(n) Lidocaine.

(o) Mepivacaine (hydroxymepivacaine).

(p) Methocarbamol.

(q) Methylprednisolone.

(r) Omeprazole.

(s) Prednisolone.

(t) Triamcinolone Acetonide.

(u) Xylazine.

(5) Prohibited Substances: A prohibited drug, chemical, or other substance includes:

(a) Any stimulants, depressants, tranquilizers, local anesthetics, drugs, drug metabolites or other substances which could affect the health or performance of a racing greyhound, however minimal, except for the drugs, chemicals or other substances permitted by Section 550.2415, F.S. or the rules promulgated thereunder.

(b) A drug or substance, regardless of how harmless or innocuous it might be, which interferes with the detection of stimulants, depressants, tranquilizers, local anesthetics, drugs, or drug metabolites which could affect the health or performance of a race animal, however minimal, or quantitation of drugs permitted by Section 550.2415, F.S. or the rules promulgated thereunder.

(6) Screening Limit for Prohibited Substances in Racing Greyhounds: Any and all findings above zero, under any condition of use, for prohibited substances shall be considered a violation of Section 550.2415, F.S.

Rulemaking Authority 550.0251(3), (11); 550.2415(7), (12) FS. Law Implemented 550.0251; 550.2415 FS. History-   New _______-19.

 

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: May 3, 2019.