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Poarch Creeks’ Barrel Racing Under Scrutiny Again

Did regulators change state policy when they approved barrel racing as a pari-mutuel activity for the first time in the nation?

That’s the question at the heart of oral arguments heard Tuesday by the 1st District Court of Appeal concerning barrel racing a Poarch Creek Indian operated facility in Gretna, FL.

Administrative Law Judge John G. Van Laningham decided this spring that, by issuing the permit in 2011, the state Department of Business and Professional Regulation effectively created a new rule regarding what constitutes a horse race without going through the necessary rule-making process. Lawyers for the Florida Quarter Horse Track Association Inc., a horse association affiliated with a Gretna pari-mutuel facility, are appealing the ruling.

Right out of the gate and throughout the Tuesday morning arguments, the three-judge panel peppered David Romanik, representing the Gretna horsemen, with questions demanding why the change in policy didn’t constitute a new rule.

Judge Nikki Ann Clark asked Romanik if barrel races had been running anywhere else in the country as a pari-mutuel activity when regulators issued the permit to Gretna Racing.

“I don’t know of any,” Romanik responded.

“So nobody in the country was doing it. You get a permit to do it and that’s not a substantial change of policy?” Clark asked. “Bottom line is it changes the game.”

Judge T. Kent Wetherell called the issue before the panel “a simple case” and referred to Van Laningham’s ruling about whether the agency’s determination that a certain type of event is horse-racing equated to a rule.

“And on that issue, isn’t that a very simple yes? Of course when an agency interprets a statute, that interpretation…is a rule,” Wetherell said.

But Romanik argued that there are no rules or statutes specifying any types of horse racing, including traditional horse races.

“So the standard against which this new activity is judged is again based on management decision. There are no rules. There are no policies. There’s no nothing. The only thing different about what we’re doing is that it’s new. That’s all,” he said.

“It’s new. But it’s a new policy,” Clark pushed back.

“It’s just a new form of the same thing,” Romanik insisted.

Since Van Laningham’s decision in May, Gretna Racing stopped the barrel races and entered an agreement with the state to hold “flag drop” matches in which two horses race against each other without obstacles.

The agency, meanwhile, is in the midst of crafting new horse racing rules after granting another quarter-horse permit for barrel racing to a track in Hamilton County.

The proposed rules appear intended to rein in barrel racing and other nontraditional horse races in a variety of ways, including requiring a minimum of six horses to race around oval tracks, barring “the racing animal to change course in response to any obstacles on the racing surface” and setting up new requirements for jockeys, including that they “wear racing silks consisting of white pants and racing colors registered with the racing secretary” and weigh less than 130 pounds. Women racing at Gretna typically dress in sparkly, rodeo-style garb.

The agency is sitting on the sidelines in the case because it did not appeal Van Laningham’s decision.

The Florida Quarter Horse Racing Association Inc., the Florida Quarter Horse Breeders and Owners Association Inc. and a horse breeder and owner originally challenged the Gretna permit and on Tuesday asked the panel to dismiss the appeal.

Steve Menton, a lawyer representing the horse men and breeders during Tuesday’s arguments, said the agency’s decision to legitimize barrel racing as a pari-mutuel activity had far-reaching implications because the horse racing permits allow tracks to operate card rooms and could open the door for slot machines.

“The ramifications of what is happening here as a result of the introduction of a new pari-mutuel activity further highlights the idea that this…represents a significant policy shift which is going to result in the expansion of gaming in different areas and it’s all being done without going through the rule-making process,” Menton said.

Owners of the Gretna track, which also has a cardroom, are hoping the quarter-horse permit will open the door for more lucrative slot machines. Voters in Gadsden County, where the track is located, approved a referendum that would allow the machines, but DBPR last month turned down Gretna’s application for slots. The track is appealing that decision.

by Dara Kam, The News Service of Florida