Barrel Racers Challenge Proposed Gambling Rules

August 3, 2015

Three newly filed leal challenges accuse gambling regulators of overstepping their authority with proposed rules that would prohibit obstacles on horse tracks, force jockeys to wear white pants and protective equipment like helmets and require jai alai frontons to be covered.

The challenges, filed with the state Division of Administrative Hearings on Thursday, are the latest twist in a prolonged effort by the Department of Business and Professional Regulation to create new rules — many of them focused on controversial barrel racing — for the pari-mutuel industry.

The challenges came two days after the department’s Division of Pari-mutuel Wagering published changes to the proposed rules that included a number of concessions to the industry. The rules have been two years in the making and were the subject of a hearing two weeks ago.

“The Division of Pari-Mutuel Wagering values any input received from the industry during the rulemaking process; the division is reviewing the filed challenges to the proposed rules at this time,” department spokeswoman Chelsea Eagle said in an email.

Thursday’s complaints came from jai alai operators in Ocala and Miami and from the North Florida Horsemen’s Association, which represents about 200 owners, trainers and riders in the barrel racing industry linked with Gretna Racing in Gadsden County. The Gretna facility is operated by the Poarch Creek Indians of Atmore.

The horsemen are challenging several of the proposed rules, including those that would prohibit obstacles on race courses, require jockeys to wear white pants and “racing colors” and require jockeys to wear protective garb, such as helmets and boots, specifically designed for horse racing.

The association’s lawyer, Donna Blanton, also questioned a proposed rule that would require all races to begin from a starting box or gate, which would put an end to “flag drop” races previously endorsed by gambling regulators.

Regulators in 2011 granted a pari-mutuel license to Gretna Racing for the rodeo-style barrel racing, which, in turn, allowed the facility to open a more-lucrative card room. An appeals court later ruled that the state erred in granting the barrel-racing license — the first of its kind in the nation. After the ruling, the state and Gretna Racing entered an agreement authorizing “flag drop” races in which two riders compete against each other but without any obstacles in the arena.

But the latest version of the rules would bar both the barrel races and the “flag drops” and would impose a “significant adverse economic impact” on the riders, owners and breeders, Blanton wrote in a 44-page complaint.

The agency not only lacks the statutory authority to promulgate the rules but failed to provide a rationale for the prohibition, Blanton wrote. And banning obstacles conflicts with the department’s previous authorization of other races like steeplechases, according to Blanton.

“It is illogical for the division to allow the use of obstacles in some horse races and prohibit them in others,” she wrote.

The rule is designed to “appease industry participants who seek to have quarter horse racing defined in such a way that supports their form of quarter horse racing to the exclusion of all others,” Blanton wrote. “The satisfaction of special interests cannot serve as a logical basis for the track rule.”

Quarter horse breeders, owners and trainers affiliated with other tracks have complained about the barrel-racing and flag-drop races, which have also set the stage for the tiny Northwest Florida track to potentially begin operating slot machines.

The challenges to the proposed jai alai rules, filed by lawyer John Lockwood, also question whether the department overstepped its authority.

In a complaint filed on behalf of Ocala-based Second Chance Jai Alai, Lockwood pointed to proposed rules that would require jai alai operators to have minimum rosters of at least eight players and mandatory rotational systems of playing in matches. The new regulations would have a “dire impact” on the facility, Lockwood wrote.

The Ocala facility is currently using only two jai alai players to fulfill its performance requirements, which allows the pari-mutuel to run a card room.

Gambling regulators had never created rules related to jai alai until now, and lawmakers have never given them the authority to do so, Lockwood wrote. Nothing in Florida law addresses a minimum roster of players and a mandatory rotational system requirement, he wrote.

“The Legislature could have imposed such a restriction if they chose to do so. However, the Legislature did not impose this kind of restriction and allowing the division to promulgate rules related to this would enlarge, modify and contravene the specific provisions of law implemented by the Legislature,” Lockwood wrote.

All three challenges also say the proposed rules are invalid because the agency failed to prepare a statement of regulatory costs, or “SERC,” required by state law for rules that would have a cumulative cost on an industry of more than $200,000 in the first year. Adding at least six players to its roster would cost Second Chance at least $400,000 a year more than what it currently spends.

Lockwood also filed a challenge on behalf of West Flagler Associates, which owns the Magic City Casino in Miami and which holds a summer jai alai permit but has not yet constructed a fronton.

West Flagler objected to proposed rules that would require frontons to be a certain size and be covered, if outdoors.

The department also lacks the authority to promulgate those rules, wrote Lockwood, adding that “the petitioner is unaware of any standardized size for jai alai courts.”

Thursday’s challenges shouldn’t be a surprise to those in the industry or to regulators, Lockwood said Friday.

“Rule challenges are very common when you have an administrative agency that’s going through rulemaking on such a broad subject. It was complicated. There were a lot of varied positions that were put out there,” Lockwood said. “It was to be expected. We’ll just see how this thing shakes out.”

by Dara Kam, The News Service of Florida

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