Simmons v. Division of Pari-Mutuel Wagering, Dept. of Business Regulation

• Decision Date: 08 December 1981
• Docket Number: No. 81-59,PARI-MUTUEL,81-59
• Citation: 407 So.2d 269
• Parties: John SIMMONS, et al., Appellants, v. The DIVISION OFWAGERING, DEPARTMENT OF BUSINESS REGULATION, Stateof Florida, Appellee.
• Court: Florida District Court of Appeals

Page 269

407 So.2d 269

John SIMMONS, et al., Appellants, v. The DIVISION OF PARI-MUTUEL WAGERING, DEPARTMENT OF BUSINESS REGULATION, Stateof Florida, Appellee.

No. 81-59.

District Court of Appeal of Florida, Third District.

Dec. 8, 1981.

Rehearing Denied Jan. 6, 1982.

DuFresne & DuFresne, Miami, for appellants.

David M. Maloney, Tallahassee, for appellee.

Before SCHWARTZ, BASKIN and DANIEL S. PEARSON, JJ.

DANIEL S. PEARSON, Judge.

We are called upon to decide whether Section 550.241, Florida Statutes (Supp.1980), is constitutional in the face of an attack by the appellants, certain owners and trainers of horses (hereafter, horsemen) that this law constitutes (1) a taking of property without just compensation; (2) an invalid exercise of the police power because not rationally related to the purpose of regulating racing; (3) an improper delegation of legislative authority to the Division of Pari-Mutuel Wagering; and (4) is so vague as to invite arbitrary application. ¹ These same attacks were rejected by the trial court.

The dispute concerns that part of Section 550.241, Florida Statutes (Supp.1980), which provides:

"(1) The racing of an animal with any drug, medication, stimulant, depressant, hypnotic, narcotic, local anesthetic, drug masking agent, or any substance foreign to the natural horse or dog is prohibited.... Rules may be promulgated which identify:

"(a) Unacceptable levels of substances existing naturally in the untreated dog or horse but at abnormal physiological concentrations, or

"(b) Acceptable levels of trace elements or innocuous substances in test samples." ²

I.

The horsemen's challenges that (1) the law is a "taking" without compensation, and (2) the law is not a valid exercise of police power because not rationally related to the purpose of regulating racing are met by the Division's assertion that even assuming a property right, ³ all property rights are subject to the valid exercise of the Legislature's police powers. Thus, says the Division, there is no "taking" requiring compensation if the police power is validly exercised.

The State, "in the interest of protecting both the health of thoroughbred horses and the integrity of the sport from which the state derives revenues ... has a valid objective in seeking to prevent drugging of race horses." Division of Pari-Mutuel Wagering v. Caple, 362 So.2d 1350, 1355 (Fla.1978). ⁴ Since this objective is valid, the only remaining questions are whether (a) an absolute ban of drugs and medication and (b) an absolute ban on any substance foreign to the natural horse or dog are reasonable means of attaining that objective. In determining the reasonableness of legislation aimed at the regulation of pari-mutuel wagering, the Florida Supreme Court has held that:

"The state has become peculiarly interested in racing because of the revenues from the pari-mutuel betting. Authorized gambling is a matter over which the state may exercise greater control and exercise its police power in a more arbitrary manner because of the noxious qualities of the enterprise as distinguished from the enterprises not affected with the public interest and those enterprises over which the exercise of the police power is not so essential for the public welfare." (emphasis supplied).

Hialeah Racing Course, Inc. v. Gulfstream Park Racing Association, Inc., 37 So.2d 692 (Fla.1948), appeal dismissed, 336 U.S. 948, 69 S.Ct. 885, 93 L.Ed. 104 (1949). Therefore, while it is conceivable that the objective of preventing drugging could be attained by less stringent means, given the Legislature's great power to regulate racing and its determination that the practice of drugging animals corrupts the sport, ⁵ we certainly cannot say that to prohibit the racing of an animal with drugs is not rationally related to the regulation of racing or is an unreasonable means to accomplish that regulation. However, we must find otherwise in respect to the prohibition of "any substance foreign to the natural horse or dog." While the Legislature's exercise of power will be declared invalid only when shown to be arbitrary and unreasonable, McInerney v. Ervin, 46 So.2d 458 (Fla.1950), a law is unreasonable where it is not rationally related to the purpose of the act. ⁶ Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225 (1971); Southern Railway Co. v. Greene, 216 U.S. 400, 30 S.Ct. 287, 54 L.Ed. 536 (1910).

In Horsemen's Benevolent and Protective Association, Florida Division v. Division of Pari-Mutuel Wagering, Department of Business Regulation, 397 So.2d 692 (Fla.1981), the court invalidated Section 550.2615, Florida Statutes (Supp.1978). The statute provided that each racing licensee pay one per cent of any purse won to a horsemen's association. The funds were then to be used "in accordance with the stated goals" of the association. The Division argued that the statute would encourage the year-round stalling of horses in Florida, which would further development of a year-round racing program in the state. The court acknowledged that was a valid objective, but held the act was not a reasonable means of accomplishing that goal, since there was no requirement that the funds be spent consistent with enhancing state revenues.

Applying this same test to Section 550.241, it is indisputable that the objectives of this statute are valid. The avowed purposes of the act are to preserve the integrity of the sport of racing from corruption, to keep the wagering public from being misled, to reduce the risk of injury, and to protect the animals from cruel and inhumane treatment. To prohibit "any substance foreign to the horse" is to prohibit everything, the helpful and the harmful, the beneficial and the detrimental, the benign and the deleterious. When measured against the articulated reasons for the enactment of the statute, that part of the statute banning any foreign substance cannot be said to bear a fair and substantial relationship to the objectives sought. Department of Business Regulation v. National Manufactured Housing Federation, Inc., 370 So.2d 1132 (Fla.1979); Shevin v. International Inventors, Inc., 353 So.2d 89 (Fla.1977); State ex rel. Parker v. Frick, 150 Fla. 148, 7 So.2d 152 (1942). See Kuster Enterprises, Inc. v. State of Florida, Department of Transportation, 357 So.2d 794 (Fla. 1st DCA 1978).

We decide, however, that the inclusion of this irrational ban on any foreign substance does not require us to declare all of Section 550.241, Florida Statutes (Supp.1980), invalid. Applying the severability test of Cramp v. Board of Public Instruction of Orange County, 137 So.2d 828 (Fla.1962), see also State v. Champe, 373 So.2d 874 (Fla.1979); State v. Lee, 356 So.2d 276 (Fla.1978), we find that the invalid clause, that is, "or any substance foreign to the natural horse or dog," can be separated from the remaining valid provisions; the legislative purpose expressed in the valid provisions can be accomplished independently of the invalid clause; the invalid clause is separable in substance from the valid clause so as to permit the conclusion that the Legislature would have passed one without the other; and Section 550.241 will be complete in itself after the invalid clause is stricken.

II.

The horsemen next challenge Section 550.241 as being an unlawful delegation of rulemaking authority, ⁷ because, they contend, it does not contain "adequate standards to guide the agency in (its) execution of the powers delegated." But this general rule requiring that express guidelines and standards be enunciated by the Legislature is inapplicable to the present case. As this court so recently said in upholding the constitutionality of Section 550.02(3), Florida Statutes (1977), in the face of an identical attack:

"Legalized gambling operates only by permission of the state. An agency may ... exercise police powers in furtherance of the statutory purpose despite the absence of specific guidelines. We hold that Section 550.02(3) constitutes a valid delegation of authority to the agency."

Solimena v. State of Florida, Department of Business Regulation, Division of Pari-Mutuel Wagering, 402 So.2d 1240, 1247 (Fla. 3d DCA 1981). Our approval in Solimena of the broad delegation to the Division of Pari-Mutuel Wagering to

"... make rules and regulations for the control, supervision and direction of all applicants, permittees and licensees, and for the holding, conducting and operating of all racetracks, race meets, races held in this state ...."

requires, a fortiori, our holding here that the more restrictive delegation found in Section 550.241, Florida Statutes, is not unlawful.

Our holding that an attack on a statute grounded on the doctrine of non-delegation does not lie would not, of course, preclude the horsemen from making the quite different attack that some rule promulgated by the Division pursuant to its grant of authority is not "reasonably appropriate to the accomplishment of the purposes of the act." State ex rel. Mason v. Rose, 122 Fla. 413, 165 So. 347 (1936); see Division of Pari-Mutuel Wagering v. Caple, supra; Solimena v. State of Florida, Department of Business Regulation, Division of Pari-Mutuel Wagering, supra. ⁸ But, as we have noted, see n. 2, supra, this appeal presents no such issue, the horsemen's challenges being to the statute.

Accordingly, we declare unconstitutional that clause of Section 550.241, Florida Statutes (Supp.1980), which prohibits the racing of any animal with "any substance foreign to the natural horse or dog." In all other respects, we hold the statute to be constitutional and affirm the judgment of the trial court.

Affirmed in part; reversed in part.

1 The horsemen also attack the constitutionality of Section 550.24, Florida Statutes (Supp.1980), which, inter alia, makes criminal the administration of "any medication or drugs prohibited by law" for the purpose of affecting the outcome of a race. No separate analysis of the attack on this statute is...