21222162, 61DER18-1 - Florida Administrative Rules, Law, Code, Register

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Notice: 21222162

Notice of Emergency Rule

Department:

DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION

Division:

Division of Pari-Mutuel Wagering

Overview

RULE:

61DER18-1

Emergency Procedures for Collecting Samples from 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 test for and prosecute the use of prohibited medications and substances which can cause injury or death to racing greyhounds as well as compromise the integrity of the races conducted. On December 22, 2017, the Division of Administrative Hearings (“DOAH”) issued a Partial Summary Final Order in case number 17-5238RU which found some of the Division’s sample collection procedures were un-adopted rules. Although the Division rejects the legal findings in the Partial Summary Final Order, the Division adopted Emergency Rule 61DER17-2, F.A.C., on December 27, 2017, to ensure the greyhound races that occurred during the pendency of any legal challenges occurred under safe conditions. Emergency Rule 61DER17-2, F.A.C., currently prescribes the Division’s procedures to collect the racing greyhound samples used to test for the presence of prohibited substances. 
On January 29, 2018, the Division published Proposed Rule 61D-6.0052, F.A.C., which sought to formally amend and clarify the greyhound sample collection process. On February 16, 2018, a petition challenging Proposed Rule 61D-6.0052, F.A.C., was filed with DOAH in case number 18-0915RP. The Final Order issued in that case, on October 1, 2018, found substantive portions of the newly proposed sample collection procedures constituted an invalid exercise of delegated legislative authority. 
On November 30, 2018, the Division determined it must withdraw Proposed Rule 61D-6.0052, F.A.C. in whole. On December 3, 2018, the Division re-opened Proposed Rule 61D-6.0052, F.A.C., for rule development. The Division subsequently published a Notice of Proposed Rule on December 4, 2018, in order to formally adopt racing greyhound sample collection procedures identical to this emergency rule. 
An immediate danger exists which requires emergency action by the Division in order to protect the health, safety, and welfare of the numerous racing greyhounds scheduled to perform in the immediate future. At this time, there are over 150 performances scheduled in the month of December, over 300 performances scheduled in January, and over 300 performances scheduled in February. In other words, hundreds of racing greyhounds will be racing in the near future. Additionally, without this emergency rule there would be an immediate danger to the wagering public and the integrity of greyhound racing which the Division is mandated by Chapter 550, F.S., to regulate.
Based on the hundreds of performances scheduled, the Division fears an immediate danger to health, safety, and welfare of racing greyhounds, the wagering public and the integrity of racing as a whole will exist without 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. The Division previously published the greyhound sample collection procedures detailed in this emergency rule on December 4, 2018, when the Division filed the Notice of Proposed Rule for Proposed Rule 61D-6.0052, F.A.C., in the Florida Administrative Register. 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.
	In addition, this emergency rule addresses the specific concerns delineated in DOAH final order 17-5238RU and 18-0915RP and shall only be effective while the Division follows the requirements of Chapter 120, F. S. to formally adopt Proposed Rule 61D-6.0052, F.A.C. As such, the Division is only taking action necessary to protect the public under the procedure used to adopt this emergency rule.

SUMMARY:

Emergency Rule 61DER18-1, F.A.C., prescribes the procedures for collecting, sealing, storing, and shipping greyhound samples to the laboratory for analysis as well as clarifying the chain of custody procedures for confiscating prohibited drugs and other items. These changes address specific concerns identified by the administrative law judges 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:

12/17/2018 Vol. 44/243

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=61DER18-1&PDate=12/17/2018&Section=4

REFERENCE MATERIALS:

No reference(s).

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