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-3.001Hearings Before Stewards/Judges

61D-3.002Appeal Procedures

61D-3.003Stay of Steward/Judges’ Penalty

61D-3.004Payment of Fines

61D-3.005Disputes of Material Fact

61D-3.006Payment of Penalties and Appeals

61D-3.007Return of Purse

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.

SUMMARY: Hearings before Stewards/Judges, Appeal Procedures, Stay of Steward/Judges’ Penalty, Payment of Fines, Disputes of Material Fact, Payment of Penalties/Appeals, and Return of Purse

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(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 HELD AT THE DATE, TIME AND PLACE SHOWN BELOW (IF NOT REQUESTED, THIS HEARING WILL NOT BE HELD): 

DATE AND TIME: Wednesday, December 16, 2020, 1:00 p.m. – 4:00 p.m.

PLACE: The Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering will announce details for an online and telephonic hearing facilitated through GoToMeeting in a corresponding meeting notice published 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-3.001 Jai Alai Game Infractions Hearings Before Stewards/Judges.

(1) 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.

(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 permitholder shall establish a board of three stewards, at least one of whom shall be the state/division steward 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) All hearings on alleged violations set forth in Section 120.80(4)(a), F.S., which are to be heard by the stewards or division judge must be conducted pursuant to the following procedures set forth in subsections (6)-(20) 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 or stewards, the division is hereby designated a proper party.

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

(6) Initiation of Proceedings.

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

(8) Documents. Upon request to the stewards or division judge, any respondent shall be entitled to obtain copies of all audio and video recordings, witness statements, and laboratory analyses. 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.

(9) 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. All requests for the issuance of subpoenas shall be directed to the stewards and division judge 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 of each subpoena.

(b) A subpoena may be served by any person authorized by law to serve process or by any person who is not a respondent and who is of majority age. Service shall be made by delivering a copy thereof to the person named in the subpoena. Proof of such service shall be made by affidavit of the person making service if not served by an officer authorized by law to do so. The cost of service shall be paid by the respondent requesting the subpoena.

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

(11) Conduct of Hearing/Evidence.

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

(b) Each 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 in the conduct of their affairs. Irrelevant and unduly repetitious evidence shall be excluded.

(12) Recordation. The stewards and division judge shall assure that a record of the proceedings is preserved. Proceedings shall be recorded on whatever media is available. 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 testimony shall request a copy of the recorded testimony and transcribe the same at his/her own expense.

(13) Representation. A respondent in any proceeding conducted before stewards and the division judge 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. 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 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) Service of Notices of Violation and Hearing.

(a) The stewards and division judge 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. At least five 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, waives the right to the hearing.

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

(16) Continuances. The stewards or division judge shall grant a continuance of a hearing for good cause shown. In deciding whether good cause is shown, the division judge 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) 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) Disqualification. Unless good cause is shown, all motions for disqualification of stewards or the division judge 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) 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 order within 14 days after the hearing. The order shall include a caption, time and place of the hearing, findings of fact, 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 permitholders’ stewards or judges that is based solely upon any rule of the permitholder.

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

 

61D-3.002 Hearings Conducted by a Board of Stewards Appeal Procedures

(1) All proceedings for alleged violations indicated in subsection (2) 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.

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

(a) Horse riding and harness riding actions in violation of Chapter 550, F.S.

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

(c) 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.

(d) Suspensions under reciprocity agreements between the Division of Pari-mutuel Wagering and regulatory agencies of other states involving horse racing.

(e) Assault or other crimes of violence on premises licensed for horse racing.

(f) Prearranging the outcome of any pari-mutuel horse racing event.

(3) Board of Stewards Composition. Prior to each steward 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.

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

(1) The stewards and division judge 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 shall provide the licensee with the procedures and time limits for invoking the right to an appeal. All requests for an appeal 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, http://www.flrules.org/Gateway/reference.asp?No=Ref-00306, and can be obtained at www.myfloridalicense.com/dbpr/pmw or by contacting the Department of Business and Professional Regulation, 2601 Blair Stone Road, Tallahassee, Florida 32399. The appeal shall state in writing the reason the licensee believes the judge’s or stewards’ order should be reversed.

(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 constitutes a waiver of the right to an appeal.

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

(4) In the event the stewards or division judge make a determination that there is a reasonable suspicion to believe that a violation of Section 550.2415, F.S., has occurred, or in the event of a positive test for a substance prohibited under Section 550.2415, F.S., 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) If the division determines that the division judge or stewards have exceeded their jurisdiction, 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.

              (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.

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

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 (12) FS. History–New 10-20-96, Amended 1-5-98, 4-12-06, 6-26-11, __________.

 

61D-3.003 Procedures Applicable to Hearings by a Board of Stewards Stay of Steward/Judges Penalty

(1) Commencement of Administrative Action: Service of an administrative complaint by the division marks the commencement of the administrative action.

(2) Service of Notices of Stewards’ Hearing:

(a) 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 by the named parties.

(b) 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 virtual 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.

(c) Any respondent who fails to attend a duly noticed hearing, either in person or through representation, waives its right to contest the outcome of the hearing.

(3) Conduct of Hearings Before a Board of Stewards

(a) 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.

(b) Respondents 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.

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

(4) General Provisions:

(a) Hearings and Records: All hearings before a Board of Stewards shall be conducted in person, by telephone, or by video conference. The division stewards 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.

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

(c) 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.

(d) Motions: All requests for relief 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.

(e) 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. For purposes of this rule, “good cause” shall mean a legally sufficient reason with the burden of proof on respondent seeking disqualification.

(f) Improper Influence: No person other than a party or its representative in a noticed proceeding shall attempt to influence the decision of the board of stewards regarding any case pending before it under this rule. All attempts to bribe and/or threaten a steward for inducement of an action is strictly prohibited. This rule shall not prohibit the stewards from consulting with counsel regarding a matter pending before them, counsel for the named parties, or sworn witnesses providing testimony.

(g) 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.(h) 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.

(i) 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. 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 respondent is being represented by an attorney or qualified representative, all communications to a respondent concerning the case shall 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.

(j) Presentation of Evidence:

1. 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 1.400, Florida Rules of Civil Procedure.

2. 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.

3. 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.

(k) At any time prior to a hearing a respondent may waive its 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.

(5) 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.

(1) A request for an appeal hearing following a stewards’/judge’s ruling shall not automatically stay the decision of the stewards/judge 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, http://www.flrules.org/Gateway/reference.asp?No=Ref-00307, and can be obtained at www.myfloridalicense.com/dbpr/pmw or by contacting the Department of Business and Professional Regulation, 2601 Blair Stone Road, Tallahassee, Florida 32399.

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

(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 shall be in writing and shall be transmitted to the division and the parties within five days from the date the request for stay is received by the stewards/judge.

(4) If the stewards/judge deny the request for a stay or do not issue a written decision as required under subsection (3), 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.

Rulemaking Authority 120.80(4)(a), 550.0251(3), 550.2415(12) FS. Law Implemented 120.80(4)(a), 550.0251, 550.1155, 550.2415(12) FS. History–New 10-20-96, Amended 1-5-98, 4-12-06, 6-26-11, ___________.

 

61D-3.004 Resolution of Proceedings Payment of Fines

(1) Recommended Orders:

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

(b) A recommended order shall be entered within 14 days after the hearing or within 14 days of a request for a recommended order without a hearing. 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.

(c) 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.

(d) Imposition of a Final Order: The division shall enter a final order within 90 days of a recommended order. 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 therefore in the order.

(2) 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-3.003, F.A.C.

All civil penalties imposed by the stewards/division judge 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.

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, _____________.

 

61D-3.005 Diputes of Material Fact

The board of stewards does not have jurisdiction to hear cases involving genuine issues of material fact. 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.

Rulemaking Authority 120.80(4)(a), 550.0251(3), 550.2415(12) FS. Law Implemented 120.80(4)(a), 550.0251, 550.1155, 550.2415 (12) FS. History–New __________.

 

61D-3.006 Payment of Penalties and Appeals

(1) Payment of Penalties. All civil penalties 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 civil penalties pursuant to this rule must be paid within 15 days of the resolution of the appeal.

(2) 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.

Rulemaking Authority 120.80(4)(a), 550.0251(3), 550.2415(12) FS. Law Implemented 120.80(4)(a), 550.0251, 550.1155, 550.2415 (12) FS. History–New __________.

 

61D-3.007 Return of Purse

(1) 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.

(2) Rights of Interested Persons or Entities:

(a) 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.

(b) 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:

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

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

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

4. The racetrack where the alleged violation occurred;

5. A link to the copy of the filed Administrative Complaint at issue; and

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

(3) 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.

(4) 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 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.

(5) 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. 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 therefore in the order.

(6) 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. An interested person that successfully intervenes in a proceeding shall have all of the rights of a named party in a proceeding.

(7) 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.

(8) 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.

(9) 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 _____________.

 

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: Halsey Beshears, Secretary, Department of Business and Professional Regulation

DATE PROPOSED RULE APPROVED BY AGENCY HEAD: November 17, 2020

DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAR: November 23, 2020