21817645, 61DER19-1 - Florida Administrative Rules, Law, Code, Register

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Notice: 21817645

Notice of Emergency Rule

Department:

DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION

Division:

Division of Pari-Mutuel Wagering

Overview

RULE:

61DER19-1

Emergency 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, bryan.barber@myfloridalicense.com, 2601 Blair Stone Rd., Tallahassee, FL 32399, (850) 717-1761.

PRINT PUBLISH DATE:

5/6/2019 Vol. 45/88

OVERSIGHT COMMITTEE:

Joint Administrative Procedures Committee
Florida Administrative Law Central Online Network (F.A.L.C.O.N.)

RELATED COURT CASES:

Division of Administrative Hearings

FEDERAL eRULEMAKING
WEB PORTAL:

Regulations.gov

HOW TO LINK TO
THIS NOTICE:

http://flrules.org/gateway/ruleno.asp?id=61DER19-1&PDate=5/6/2019&Section=4

REFERENCE MATERIALS:

Ref-06400 ARCI Uniform Classification Guidelines December 2014

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