Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering v. The Florida Horsemen's Benevolent and Protective Association, Inc., a Florida nonprofit corporation

FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
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No. 1D18-1434
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DEPARTMENT OF BUSINESS AND
PROFESSIONAL REGULATION,
DIVISION OF PARI-MUTUEL
WAGERING,

Appellant,

v.

THE FLORIDA HORSEMEN'S
BENEVOLENT & PROTECTIVE
ASSOCIATION, INC., a Florida
nonprofit corporation,

Appellee.
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On appeal from a Partial Final Order of the Division of
Administrative Hearings.
Lisa Shearer Nelson, Administrative Law Judge.

March 7, 2019

PER CURIAM.

The Department of Business and Professional Regulation,
Division of Pari-Mutual Wagering (the “Division”) appeals an
order from the Division of Administrative Hearings, finding Rule
61D-6.011, Florida Administrative Code (2016), was an invalid
exercise of delegated legislative authority. We agree with both
parties that the language of the relevant statutory provision,
section 550.2415(7), Florida Statutes (2015), is clear and
unambiguous. See Fla. Hosp. v. Agency for Health Care Admin.,
823 So. 2d 844, 848 (Fla. 1st DCA 2002) (holding that if the
language of a statute “is clear and unambiguous and conveys a
clear and definite meaning, the statute should be given its plain
meaning”). The provision provides that “[t]he division rules must
include a classification system for drugs and substances and a
corresponding penalty schedule for violations which incorporates
the Uniform Classification Guidelines for Foreign Substances,
Version 8.0, revised December 2014, by the Association of Racing
Commissioners International, Inc.” § 550.2415(7)(c), Fla. Stat. The
parties agree that the referenced document includes a penalty
schedule, and we reject the Division’s argument that the statutory
provision directs the Division to incorporate only the drug-
classification portion of that document, rather than—as the
statute says—a classification system “and a corresponding penalty
schedule for violations which incorporates” that document.
Because the Division adopted its own penalty schedule, it exceeded
its delegated legislative authority. ∗

AFFIRMED.

LEWIS, WINSOR, and M.K. THOMAS, JJ., concur.

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Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
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∗
We agree with the parties that although the rule has been
revised and now includes the required penalty schedule, the issue
is not moot because disciplinary actions are pending below based
on violation of the invalid rule. See, e.g., Dep’t of Health v. Shands
Jacksonville Medical Ctr. Inc., 259 So. 3d 247, 251 (Fla. 1st DCA
2018) (noting a matter is not considered moot where “collateral
legal consequences flow from the issues to be resolved that may
affect the rights of a party”).

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Ross Marshman, Chief Appellate Counsel for the Department of
Business & Professional Regulation, Tallahassee, for Appellant.

Bradford J. Beilly and John Strohsahl of Beilly & Strohsahl, P.A.,
Fort Lauderdale, for Appellee.

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