The purpose and effect of the proposed rules will be to implement Florida Statutes pertaining to the conduct of proceedings before the judges and stewards officiating races at pari-mutuel facilities, and procedures pertaining to appeals of orders of ...

DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION
Division of Pari-Mutuel Wagering

Rule No.: RULE TITLE
61D-3.001: Hearings Before Stewards/Judges
61D-3.002: Appeal Hearing Procedures
61D-3.003: Stay of Steward/Judges' Penalty
61D-3.004: Payment of Fines
PURPOSE AND EFFECT: The purpose and effect of the proposed rules will be to implement Florida Statutes pertaining to the conduct of proceedings before the judges and stewards officiating races at pari-mutuel facilities, and procedures pertaining to appeals of orders of judges and stewards.
SUMMARY: These proposed rules address amendments relating to hearing and appeal procedures.
OTHER RULES INCORPORATING THIS Rule 61D-13.002 incorporates Rule 61D-3.001.
EFFECT ON THOSE OTHER RULES: Rule 61D-13.002, F.A.C., requires stewards to hold hearings in accordance with the provisions of Rule 61D-3.001, F.A.C. Where this rule changes those provisions, stewards will be required to follow the new provisions.
SUMMARY OF STATEMENT OF ESTIMATED REGULATORY COSTS: The agency has determined that these rules will not have an adverse impact on small business and will not increase regulatory costs by $200,000 in the aggregate within one year. 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.
SPECIFIC AUTHORITY: 120.80(4)(a), 550.0251, 550.054(9)(b), 550.1155, 550.2415(12) FS.
LAW IMPLEMENTED: 120.80(4)(a), 550.0251, 550.054, 550.1155, 550.2415 FS.
IF REQUESTED WITHIN 21 DAYS OF THE DATE OF THIS NOTICE, A HEARING WILL BE HELD AT THE DATE,TIME AND PLACE SHOWN BELOW(IF NOT REQUESTED, THIS HEARING WILL NOT BE HELD):
DATE AND TIME: February 1, 2011, 2:00 p.m. – 5:00 p.m.
PLACE: Florida Department of Business and Professional Regulation, Northwood Centre, Board Room, 1940 N. Monroe Street, Tallahassee, Florida 32399.
Pursuant to the provisions of the Americans with Disabilities Act, any person requiring special accommodations to participate in this workshop/meeting is asked to advise the agency at least 5 days before the workshop/meeting by contacting: Mary Polombo at [phone]. If you are hearing or speech impaired, please contact the agency using the Florida Relay Service, 1(800)955-8771 (TDD) or 1(800)955-8770 (Voice).
THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE IS: Mary Polombo, Clerk, Division of Pari-Mutuel Wagering, 1940 North Monroe Street, Tallahassee, Florida 32399-1035

THE FULL TEXT OF THE PROPOSED RULE IS:

61D-3.001 Hearings Before Stewards/Judges.

(1) Each jai alai permitholder shall establish a panel of judges consisting of a division representative, players’ manager, and the fronton general manager. Jai Alai game Game infractions shall be decided by the court judges. 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.

(2) Alleged violations of Chapter 550, F.S., or Chapter 61D, F.A.C., in horseracing shall be heard by a board of stewards. Each horseracing, harness racing, and greyhound racing permitholder shall establish a board of three stewards/judges, at least one of whom shall be the state/division steward/judge selected and hired by the division.

(3) Alleged violations of Chapter 550, F.S., or Chapter 61D, F.A.C., in greyhound racing shall be heard by the division judge.

(4)(3) All stewards’ and judges’ hearings on alleged violations set forth in Section 120.80(4)(a), F.S., Florida Statutes, which are to be heard by the stewards or division judge, judges or panel of judges must be conducted pursuant to the following procedures set forth in subsections (6)-(20) (5)-(17) below when the purpose of the hearing is to impose a fine or suspend a license. For purposes of review of a decision of the division judge judges or stewards or panel of judges as provided in subsection 61D-3.002(6), Florida Administrative Code, the division Division is hereby designated a proper party.

(5)(4) All proceedings involving violations other than those described in Section 120.80(4)(a), F.S., 120.633, Florida Statutes, which are to be heard by the stewards or division judge, judges or panels of judges shall be conducted in accordance with the applicable provisions of Chapter 120, F.S. Florida Statutes.

(6)(5) Initiation of Proceedings.

(a) Proceedings before stewards and the division judge judges shall be made by written document entitled “Notice of Violation and Hearing.”

(b) Each Notice of Violation and Hearing shall contain the name and address of the respondent, a statement of the statute(s) and/or rule(s) alleged to have been violated and a brief statement of the underlying facts and the date, time, and place of the hearing on the charges.

(7)(6) Prior to a hearing for an alleged medication or drug violation, where redistribution of the purse may be involved, the stewards or division judge judges shall give at least five business days timely notice to each owner who may be adversely affected by the purse redistribution of the date, time, and location of the hearing.

(8)(7) Documents. Upon request to the stewards or division judge judges, any respondent shall be entitled to obtain copies of all audio and video recordings tapes, witness statements, and laboratory analyses analysis. A respondent requesting production shall pay the actual cost of production of such material. A respondent shall also be entitled to the names and addresses of all witnesses and investigators with information relevant to the matter(s) to be heard by the stewards or division judge judges.

(9)(8) Subpoenas.

(a) Subpoenas to compel the attendance of witnesses at hearing shall be issued by the division upon the request of a party, the stewards or division judge judges. All requests for the issuance of subpoenas shall be directed to the stewards and division judge judges and such requests shall be forwarded to the division for issuance. The respondent requesting the subpoena shall arrange for their own service and pay all costs for the service services of each subpoena.

(b) No change.

(10)(9) Witnesses. All witnesses shall be sworn and subject to examination and cross-examination.

(11)(10) Conduct of Hearing/Evidence.

(a) Oral testimony shall be taken only on oath or affirmation. Stewards and the division judge judges shall administer oaths and examine witnesses.

(b) through (c) No change.

(12)(11) Recordation. The stewards and division judge judges shall assure that a record of the proceedings is preserved. Proceedings shall be recorded on whatever media is available by audio tape. Any respondent to a hearing may, at his/her own expense, provide a certified court reporter. Any respondent who wishes to make a written transcript of the recorded taped testimony shall request a copy of the recorded taped testimony and transcribe the same at his/her own expense.

(13)(12) Representation. A respondent in any proceeding conducted before stewards and the division judge judges 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., 28-5.1055, Florida Administrative Code, who agrees to comply with the requirements of Rule 28-106.107, F.A.C. 28-5.1056, Florida Administrative Code. After written notice of appearance that a respondent is being represented by an attorney or qualified representative, all communications to a respondent concerning the case shall also be made to the respondent’s attorney or representative, and the respondent’s attorney or representative shall be entitled to exercise the rights granted to the respondent under these rules.

(14)(13) Service of Notices of Violation and Hearing.

(a) The stewards and division judge judges shall set the time and place for all hearings and written notice thereof shall be served on all respondents, counsel, or other qualified representatives by personal service when possible, otherwise in accordance with Section 120.60, F.S., or by Certified Mail, return receipt requested, to the respondent’s last known address or by written notice prominently posted at the respondent’s principal workplace if such is at a pari-mutuel facility. At least five (5) days notice shall be given for the hearing, unless otherwise agreed by the respondent.

(b) Any respondent who is served with a Notice of Violation and Hearing and does not appear at a hearing before the stewards or division judge, either in person or through representation, judges or panel of judges requested by the party waives the right to the hearing.

(15)(14) Service of Papers. Unless the stewards or division judge judges otherwise order, every paper filed in a proceeding, except Notices of Violation and Hearing (as provided for in subsection (14)(13) above) and requests for witness subpoenas, shall be served on each respondent. Service shall be made upon the respondent or respondent’s his representative by hand delivering a copy or in accordance with Rule 28-106.110, F.A.C. by mailing it to the last known address.

(16)(15) Continuances. The stewards or division judge judges shall grant a continuance of a hearing for good cause shown. In deciding whether good cause is shown, the division judge judges and stewards must consider whether the reason given by the licensee for requesting a continuance is an event out of the licensee’s control, such as the death of an immediate family member. Requests for continuance shall be made in writing.

(17)(16) Computation of Time. In computing any period of time prescribed or allowed by these rules or by any applicable statute, the day of the act from which the designated period of time begins to run shall not be included. Five days shall be added to prescribed time limits when service is made by mail.

(18)(17) Disqualification. Unless good cause is shown, all motions for disqualification of stewards or the division judge judges shall be made to the division in writing at least five days prior to the date scheduled for hearing. In deciding whether good cause is shown, the division must consider whether the reason given by the licensee for not meeting the five-day limitation is an event out of the licensee’s control, such as the death of an immediate family member.

(19)(18) Orders.

(a) In the event the stewards or division judge determine a statute or rule has been violated and a penalty of a license suspension of 60 days or less, or a fine not to exceed $1,000 is sufficient to address the violation, the stewards or division judge shall enter an An order shall be entered by the stewards or judges within fourteen (14) days after the hearing. The order shall include a caption, time and place of the hearing, findings of fact facts, statement of rules or statutes violated, and a ruling stating the length of any suspension and the amount of the fine imposed for each violation.

(b) In the event the stewards or division judge determine a statute or rule has been violated and a penalty of a license suspension of greater than 60 days, or a fine of greater than $1,000 should be imposed for the violation, the stewards or division judge shall forward a recommendation to the division stating their findings of fact, statement of statutes or rules violated, and recommended penalty within 14 days after the hearing. The recommendation shall be served to each party at the time it is forwarded to the division. A party shall have 14 days from the date the recommendation is issued in which to file a response with the division prior to the entry of a final order.

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

(21) No person other than a party in a noticed proceeding shall attempt to influence the decision of the stewards or division judge regarding any case pending before them under this rule. This rule shall not prohibit the stewards or division judge from consulting with counsel regarding a matter pending before them.

(22) A steward or judge employed by the division shall not sit in judgment of a matter pending before the permit holders’ stewards or judges that is based solely upon any rule of the permitholder.

Remaking Specific Authority 120.80(4)(a), 550.0251, 550.1155 FS. Law Implemented 120.80(4)(a), 550.0251, 550.1155 FS. History– New 10-20-96, Amended 12-15-97, 4-12-06,________.

 

61D-3.002 Appeal Hearing Procedures.

(1) The stewards and division judge, judges, or panel of judges 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, judges, or panel of judges shall provide the licensee with the procedures and time limits for invoking the right to an appeal. All requests for an appeal hearings 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, and can be obtained at www.myfloridalicense.com/dbpr/pmw or by contacting the Division of Pari-Mutuel Wagering at 1940 North Monroe Street, Tallahassee, Florida 32399-1035 and incorporated by Rule 61D-10.001, Florida Administrative Code. The appeal shall state in writing the reason the licensee believes the judge’s or stewards’ order should be reversed. The request for hearing must provide the reason for the request and be signed by the requesting party. The requesting party, however, is not barred from raising issues on appeal not included on Form DBPR PMW-3100.

(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, judges, or panel of judges constitutes a waiver of the right to an appeal hearing. The request for an appeal shall state in writing the reason the licensee believes the judges’ or stewards’ order should be reversed.

(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 may be conducted either in person, by telephone, or by other electronic means or telephonically.

(4) In the event the stewards or division judge, judges, or panel of judges make a determination that there is a reasonable suspicion to believe that a violation of Section 550.2415, Florida Statutes, has occurred, or in the event of a positive test for a substance prohibited under Section 550.2415, Florida Statutes, 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) Failure to appear for an appeal hearing scheduled and noticed shall constitute a waiver of the right to such a hearing.

(5)(6) Nothing in this rule shall divest the division of its authority to initiate action for alleged violations of Chapter 550, Florida Statutes. If the division determines that the division judge or stewards or the judges have exceeded their jurisdiction, or 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. Florida Statutes.

(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.

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

Rulemaking Specific Authority 120.80(4)(a), 550.0251, 550.054(9)(b), 550.1155 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,_______.

 

61D-3.003 Stay of Stewards’/Judge’s Judges’ Penalty.

(1) A request for an appeal hearing following a stewards’/judge’s judges’ ruling shall not automatically stay the decision of the stewards/judge judges regarding the penalty imposed. Any request for a stay of the penalty imposed shall specify the reasons supporting the issuance of a stay. The licensee’s request for a stay must be in writing or on Form DBPR PMW-3090, Request for Stay, effective 3-4-07, adopted herein by reference, and can be obtained at www.myfloridalicense.com/dbpr/pmw or by contacting the Division of Pari-Mutuel Wagering at 1940 North Monroe Street, Tallahassee, Florida 32399-1035. and incorporated by Rule 61D-10.001, Florida Administrative Code. The division, however, shall not give less than seven (7) days notice of hearing unless waived by the licensee requesting the appeal.

(2) Any party desiring a stay of stewards’/judge’s judges’ ruling shall first seek the stay from the stewards/judge judges, who shall grant the stay unless:

(a) The stewards or division judge enter a suspension of 60 days and refer the matter to the division with a recommendation for entry of an emergency suspension pursuant to Section 120.60(6), F.S., or an order of summary suspension pursuant to Section 550.2415(3)(c), F.S.; or or deny the stay based on the following considerations: the severity of the violation, prior disciplinary history, the likelihood of the requesting party prevailing on appeal, the safety of the public, and the safety of the pari-mutuel wagering participants and racing animals. If the order appealed has the effect of suspending a license, a stay shall be granted as a matter of right upon reasonable conditions, unless the stewards determine that a stay of penalty would constitute a probable danger to the state’s regulation of the pari-mutuel industry.

(b) The stewards or division judge find after a hearing with notice to the party seeking the stay that the stay is being sought solely for the purpose of delaying a penalty.

(3) The decision of the stewards/judge judges shall be in writing and shall be transmitted to the division and the parties within five 5 days from the date the request for stay is received by the stewards/judge judges.

(4)(3) If the stewards/judge deny the request for a stay or judges do not issue a written decision as required under subsection (3) grant a stay of the penalty, the party is entitled to seek a stay from the division. After reviewing the decision of the stewards or division judge, the request for stay, and the record, the division shall grant or deny the stay.

The division shall grant or deny the stay based on the following considerations: the severity of the violation, the number of times the party requesting the stay has violated the same rule or statutory provision, the likelihood of the requesting party prevailing on appeal, the safety of the public, and the safety of the pari-mutuel wagering participants and racing animals. If the order appealed has the effect of suspending a license, a stay shall be granted as a matter of right upon reasonable conditions, unless the division determines that a stay of penalty would constitute a probable danger to the state’s regulation of the pari-mutuel industry.

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

 

61D-3.004 Payment of Fines.

All civil penalties imposed by the stewards/division judge judges must be paid within 15 days of the ruling unless the ruling is appealed and a stay has been entered pursuant to Rule 61D-3.003, F.A.C. The fine must be paid within 15 days of the resolution of the appeal. However, the period of time for payment may be extended only by the stewards/judges, for no more than 15 days for good cause shown (herein defined as a showing of inability to meet the above mentioned deadline due to pecuniary distress). If an appeal is requested, the conditions for a stay set forth in subsection 61D-3.003(2), Florida Administrative Code, must be met.

Rulemaking Specific Authority 120.80(4)(a), 550.0251(3), 550.054(9)(b), 550.1155(1), (2), 550.2415(12)(7) 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,________.

NAME OF PERSON ORIGINATING PROPOSED RULE: Milton Champion, Director, Division of Pari-Mutuel Wagering
NAME OF AGENCY HEAD WHO APPROVED THE PROPOSED RULE: Charlie Liem, Secretary, Department of Business and Professional Regulation
DATE PROPOSED RULE APPROVED BY AGENCY HEAD: December 16, 2010
DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAW: January 30, 2009