97-002080RP St. Petersburg Kennel Club, Inc., D/B/A Derby Lane vs. Division Of Pari-Mutuel Wagering Status: Closed DOAH Final Order on Tuesday, August 19, 1997.

Summary: Proposed rule defining poker held valid. Rule authorized by specific statute; doesn't enlarge, modify or contravene statute; isn't arbitrary or capricious.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ST. PETERSBURG KENNEL CLUB, )

)

Petitioner, )

)

vs. )

) Case No. 97-2080RP

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF PARI-MUTUEL )

WAGERING, )

)

Respondent. )

______________________________)

FINAL ORDER

In lieu of a formal administrative hearing, this case came

before J. Lawrence Johnston, Administrative Law Judge, Division

of Administrative Hearings (DOAH), on proposed final orders based

upon the evidentiary record created in DOAH Case Nos. 97-0031,

97-0376, and 97-1667.

APPEARANCES

For Petitioner : Harold F. X. Purnell, Esquire

Rutledge, Ecenia, Underwood, Purnell

and Hoffman

Post Office Box 551

215 South Monroe Street, Suite 420

Tallahassee, Florida 32302-0551

For Respondent : Miriam S. Wilkinson, Esquire

Department of Business and Professional

Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-1036

STATEMENT OF THE ISSUE

The issue in this case is whether proposed Florida

Administrative Code Rule 61D-11.026 is valid.

PRELIMINARY STATEMENT

On April 30, 1997, the Petitioner, the St. Petersburg Kennel

Club, Inc., d/b/a Derby Lane, filed a Petition for Administrative

Determination of the Invalidity of Proposed Rule challenging

proposed Florida Administrative Code Rule 61D-11.026. The

parties waived the statutory 30-day deadline under Section

120.56(1)(c), Florida Statutes ( Supp. 1996), and requested that

final hearing be scheduled on June 25, 1997. Notice of Final

Hearing was issued on May 20, 1997.

On June 2, 1997, the Respondent, the Department of Business

and Professional Regulation, Division of Pari-Mutuel Wagering

(the Division), filed an agreed Motion for Judicial Notice of

Prior Administrative Proceeding asking for official recognition

of the evidence admitted at final hearing in DOAH Case Nos.

97-0031, 97-0376, and 97-1667. An Order Taking Official

Recognition was entered on June 3, 1997.

On June 20, 1997, the parties filed a Joint Prehearing

Stipulation and Joint Motion to File Proposed Recommended Orders

in Lieu of Formal Hearing in 30 days. The Joint Stipulation

added Excerpts from The New Complete Hoyle Revised , published

December 1991, to the evidence.

An Order Cancelling Final Hearing and Establishing PFO

Deadline was entered on June 26, 1997.

FINDINGS OF FACT

Rule 61D-11.002(2)(a) and the Incipient Policy

1. During the 1996 Session of the Florida Legislature,

pari-mutuel permit holders were authorized, for the first time,

to operate cardrooms at their facilities on days when live racing

is being conducted, effective January 1, 1997. Only certain card

games were authorized, and games have to be approved by the

Respondent, the Department of Business and Professional

Regulation, Division of Pari-Mutuel Wagering (the Division).

Chapter 96-364, Laws of Florida (1996).

2. When the Division first began implementing the new

cardroom statute, it anticipated that it would be receiving

requests for card games as they appeared in Hoyle's Modern

Encyclopedia of Card Games , by Walter B. Gibson, published by

Doubleday and Company, Inc., April 1974 1st Edition ( Hoyle’s ).

3. Hoyle’s includes many games besides poker; in addition

to a special section on poker, it includes special sections on

pinochle and solitaire; the evidence is not clear as to the other

kinds of card games in Hoyle’s .

4. Initially, the Division promulgated Florida

Administrative Code Rule 61D-11.002(2)(a ) which provides:

(2)(a ) All card games in Hoyle's Modern Encyclopedia

of Card Games, by Walter B. Gibson, published by

Doubleday and Company, Inc., April 1974 1st Edition

hereinafter ( Hoyle's) incorporated herein by reference,

that are authorized by and played in a manner

consistent with Section 849.085(2)(a) and Section

849.086, Florida Statutes, and the rules promulgated

thereunder, shall be approved by the division. All

other card games shall be approved by the division if

the type of card games and the rules of the card games,

as specified in BPR Form 16-001, meet the requirements

of Section 849.085(2)(a) and Section 849.086, Florida

Statutes, and the rules promulgated thereunder.

5. The Division soon noticed that it was receiving

requests for the approval of games alleged to be “poker,” but

which deviated from the standard features of poker. In November

1996, the Division began to develop a policy for the review of

such games and began to require card games to use standard poker

card and hand ranking and afford players the opportunity to bluff

after seeing their hands.

Requests and Denials Prior to Proposed Rule

6. On or about November 8, 1996, the Petitioner, the

St. Petersburg Kennel Club, submitted a request for approval for

Big Poker 21. The Division denied approval on December 3, 1996.

7. On or about December 19, 1996, the Petitioner submitted

a request for approval for Sure 2 Win. The Division denied

approval on January 2, 1997.

8. On or about January 23, 1997, the Petitioner submitted

a request for approval for Florida Twenty-One. The Division

denied approval on February 14, 1997.

9. All three games are played in a non-banking manner.

(The house is not a player in games played in a non-banking

manner, a requirement for approval.) The Division initially

simply advised the Petitioner that its proposed games were not

authorized. Subsequently, in discovery depositions in this case,

the Division advised the Petitioner more specifically, as

follows : approval of Big Poker 21 was denied because Big Poker

21 fails to adhere to standard poker-hand rankings and does not

allow for the possibility of bluffing, calling or raising;

approval of Florida Twenty-One was denied because Florida Twenty-

One fails to adhere to standard poker-hand rankings; and approval

of Sure 2 Win was denied because in the five-card portion of Sure

2 Win, the players have no opportunity to wager or bluff after

viewing the cards and simply win or lose on the hand dealt.

10. The Division has approved 35 out of 39 card games

submitted by cardroom operators. The four denied include Sure 2

Win, Big Poker 21, Florida Twenty-One, and Pompano 22. Pompano

22 is very similar to Florida Twenty-One.

11. The card games, Hollywood 2-3 Flash and Hollywood 4-3

Flash, were approved by the Division on January 10, 1997. The

Petitioner contends that, under the Division’s incipient policy

and proposed rule, these games should not have been approved

because they “do not provide for bluffing.” However, both afford

players the opportunity to check or bet after seeing their first

cards (the first two in 2-3 Flash or the first four in 4-3

Flash).

12. The card game, Three-Card Stud, also was approved by

the Division on January 10, 1997 . The Petitioner contends that,

under the Division’s incipient policy and proposed rule, this

game should not have been approved because it does not follow the

standard poker hand rankings. However, the hand rankings are

consistent with the standard poker-hand-ranking system, just

adapted for a three-card hand.

The Proposed Rule

13. Notice of a rule workshop regarding the definition of

poker was published in December 1996, and a workshop was held in

January, 1997.

14. The Division distributed a hand-out on poker at the

January workshop, but the evidence is not clear as to the content

of the hand-out. It appears to have been a list of seven issues

for discussion, including : whether there have to be one or more

betting intervals in a poker game; whether the players of poker

have to be able to wager on the quality of his/her hand by either

folding, calling, passing, or raising; and whether a poker game

must use the standard poker hand rankings.

15. On March 18, 1997, the Division proposed Florida

Administrative Code Rule 61D-11.026:

Poker is defined as a non-banking game played with

cards, comprised of two or more players who play for

wagers, and which shall contain the following elements:

(1) conformity to the traditional, standardized poker

hand ranking system where the value of the ranking is

determined by the relative probablity of drawing a

particular hand; (2) conformity to the traditional,

standardized poker card ranking system (e.g., K>Q>J>10

etc.); and (3) the opportunity to bluff, through at

least one betting round, after players have viewed

their cards. Poker does not include any game whose

object is to reach a certain accumulated number by

adding up the face value of the cards.

Specific Authority 849.085(2)(a),

849.086(2)(a) ,(4),(12), 550.0251(12) FS, Law

Implemented 849.086 FS. History-New.

Standard Poker

16. Standard poker is a non-banking game played with cards

or tiles that generally include the following features : at least

part of the player’s hand is known only to the player and is

solely under the player’s control; there are two or more players;

there is a pot created by wagers which constitutes the prize for

winning; there is a standard ranking of hands which is not

arbitrary and which is based on the mathematical expectation or

difficulty of achieving a particular combination of cards; there

is a standard ranking of cards from lowest to highest; there is

opportunity for each player to bet on the cards which comprise

the player’s hand; and there are one or more betting rounds.

17. The fundamental element that different iates poker from

all other forms of gambling is the bluff : the possibility that a

player can win the game with a hand that ranks lower than another

player’s.

18. The game of poker is an American invention whose rules

have been fairly standardized for almost a century.

19. There is no mention of poker in Hoyle’s 1776 text. The

rules of poker developed during the 19th century. The first

reference to rules for a game resembling poker is in Hoyle’s 1857

text. Although draw and stud poker did not exist in 1857, the

hand rankings were the same then as they are today, only without

the straight or straight flush. The straight was introduced into

the ranking system below the flush at the turn of this century.

20. Draw poker and five-card stud developed during the

Civil War, although straight poker was clearly the most important

form of poker at that time. The ranking system that is in use

today was firmly established by 1885.

21. The standard poker-hand rankings of today, given in

order from highest to lowest, are as follows : five of a kind

(possible only when wild cards are used), straight flush (royal

flush is highest), four of a kind, full house, flush, straight,

three of a kind, two pair, pair, high card.

22. The standard poker-card rankings of today, in order

from highest to lowest, are as follows : A, K, Q, J, 10, 9, 8, 7,

6, 5, 4, 3, 2, with the ace sometimes low instead of high.

Petitioner’s Expert

23. On July 19, 1996, the Petitioner’s expert, Steven Fox,

submitted to the Division a set of suggested revisions to the

Division’s proposed cardroom rules. Fox stated that the games of

poker in Hoyle’s are inappropriate for commercial cardroom use

and that it was better for the State to develop its own generic

standard of poker: “Attached are some of my own [generic

standard of poker] on commercial poker games and a generic

definition of poker for reference.”

24. As applied to commercial poker games, the features of

poker that Fox suggested the Division use as a guideline “to

evaluate whether a game should be classified as poker” include:

(a) usually played with cards; (b) cards are ranked from

designated lowest or worst to highest or best; (c) there is a

ranking system which assigns relative value to each player’s

combination of cards, where the ranking system is not arbitrary

and is based on the mathematical expectation for receiving each

combination; (d) each player can participate in the action based

upon cards solely under his control . . . and knowledge of other

players’ habits or styles; (e) at least some of the cards under a

player’s control are known only to him; (f) each player has the

opportunity to bet on the cards which comprise his hand and there

may be more than one betting round; and (g) players bet against

the relative holdings of other players.

25. In his July 1996 materials, Fox suggested that the

Division consider the traditional poker ranking system of cards

from lowest or worst to highest or best, as follows: 2, 3, 4, 5,

6, 7, 8, 9, 10, Jack, Queen, King, Ace. “The Ace shall be

treated as a one in low poker and in low straight sequences (A,

2, 3, 4, 5). Otherwise it will be assumed to be valued higher

than all the other cards in assuming standard 52 card deck.”

This is the exact same card ranking system listed in Hoyle’s .

26. In his July 1996 materials, Fox suggested that the

Division consider the traditional poker-ranking system of hands

in descending order of value as : five aces (includes the joker

when available), straight flush, four of a kind, full house,

flush, straight, three of a kind, two pair, one pair, no pair

(high card). This is the same hand-ranking system listed in

Hoyle’s .

27. At final hearing in DOAH Case Nos. 97-0031, 97-0376,

and 97-1667 on April 11, 1997, Fox testified that it is

“extremely difficult to pin down what exactly is poker”; that

poker hand rankings are arbitrary and established by agreement of

the players, i.e. , “whatever the players want”; and that, because

of the $10 pot limitation, games in Florida lend themselves more

to “home-style” or “showdown” games. When questioned on cross-

examination about these apparent contradictions, Fox asserted

that his definition as submitted to the Division in July 1996,

was “something that I used in more of the casino versions of

poker, and I use this as a suggestion so that people can

understand a casino version of poker.”

28. But, nowhere in Fox’s July 1996 materials, does he

state, suggest, or infer that his definition of poker is a

“casino version” of poker or that his definition would be

inappropriate for use in Florida because of the $10 pot

limitation. To the contrary, it was Fox’s desire that the

Division incorporate his suggested definition of poker into its

regulations. At the time he submitted his suggested definition

of poker to the Division in July 1996, Fox was fully aware of the

$10 pot limitation in Florida.

29. Fox was paid by the Petitioner to provide expert

testimony on its behalf at the hearing on April 11, 1997. Fox

was not paid for his proposed revisions and definition of poker

submitted to the Division in July 1996.

Dealer’s Choice Games in Hoyle’s

30. Included among the poker games described in Hoyle’s are

many dealer’s choice poker games. According to Hoyle’s , these

games “run the gamut from mere variants of standard games to

those that are wild beyond belief.” Some of these games—

including Jacks High, Lalapalooza, Low Poker, One Card Poker,

Place Poker, Second Hand Low, Tens High, Two Card Poker, and

Zebra Poker—vary from the standard poker-hand rankings. Others—

including High Spade Split, Jacks High, Tens High, and Zebra

Poker—vary from the standard poker-card rankings. Some—including

Cold Hands, Cold Hands Poker with a Draw, Blind Poker, and Show

Down Poker—do not afford players the opportunity to bluff after

seeing their hands.

31. There also are other homestyle, dealer’s choice “poker”

games, not listed in Hoyle’s , which do not conform to the

Division’s definition of poker. These include 727 and 333, in

which the object is to obtain a certain numerical total by adding

the point values of cards.

The New Complete Hoyle Revised

32. The New Complete Hoyle Revised was published in

December 1991. Excerpts are included in the evidence in this

proceeding. It appears that the excerpts begin on page 26 with a

section called Variations of Poker. The excerpts appear to

follow material on standard Poker which are not in evidence.

33. The section called Variations of Poker begins with a

subsection called Optional Laws, which in turn seems to composed

of sections called Special Hands, Popular Wild Cards, Double-Ace

Flushes, Stripped Deck, and Royalties. The next subsection,

starting on page 28, is called Poker Variations. It states:

There is an indeterminate number of games based on

Poker, and many of these games have several different

names. Most of them were originally devised, or are

devised from time to time, to break the monotony of a

regular Poker game (or, at least, what seems to the

average player to be monotony.) The variations which

have proved most popular over a period of time are

described in the following pages.

In most of these games, the standard poker hands

as listed on page 6 have value in the showdown and

determine the winner. When any of the standard poker

hands are not counted, or when any of the optional

hands (page 26) are counted, that fact is noted in the

description of the variation. In some cases, each hand

in the showdown consists of fewer than five cards;

though a player be dealt as many as ten cards, he must

select his best five for the showdown.

The games described on pages 28 through 36 include some of the

games included in the Dealer’s Choice section of Hoyle’s . At the

same time, it also includes a “game” called Dealer’s Choice.

Under Dealer’s Choice, the New Complete Hoyle Revised states in

part:

In the usual informal Poker game, the dealer may choose

which form or variation of Poker will be played.

Sometimes he is not limited to forms of Poker, but may

select such games as Fan Tan, Red Dog, or any other

game suitable to the number of players at the table.

Also included are the games Red and Black and Up and Down the

River (or Put and Take). In Red and Black:

The rules follow Draw Poker except in the rank of the

cards. Instead of determining the winner by poker

hands, each player in the showdown counts the point

value of his hand. All red cards count plus, and all

black cards count minus; each ace counts 1 point, each

face card 10 points, and each other card its index

value. The hand with the highest plus total in the

showdown wins the pot; or the game is played high-low,

with the greatest plus hand dividing the pot with the

greatest minus (or, if there is no minus hand, with the

lowest plus).

34. In Up and Down the River (or Put and Take):

Dealer gives each player five cards, face up, one at a

time. He then turns up five cards to the center, one

at a time, as “put” cards. As each card is turned,

each player having a card of the same rank in his hand

must put in the pot as many chips as the rank of the

cards, counting a king as 13, queen 12, jack 11, ace 1

and other cards their index numbers. If a player has

two or more cards in his hand of the rank turned, he

must put up individually for each. When the five “put”

cards have been turned, the dealer turns up five “take”

cards and this time each player takes from the pot the

number of chips equivalent to the rank of the care for

each card of similar rank in his hand.

* * *

This is played as a banking game, the dealer

taking any excess remaining in the pot and supplying

any deficiency; but there is no advantage to the

dealer.

Petitioner’s Proposed “Poker” Games

35. The Petitioner’s proposed “poker” games called Big

Poker 21 and Florida Twenty-One do not conform to the standard

poker card ranking system. Face cards are all given exactly the

same rank or value; each is worth 10 points, while aces are worth

1 or 11 points.

36. The object of both Big Poker 21 and Florida Twenty-One

is to total 21 points, or as close to 21 points as possible, by

adding the point values of cards. Players accumulate cards by

drawing cards face up until a certain point value is reached,

whereupon they “stand.”

37. Big Poker 21 and Florida Twenty-One both allow for an

automatic win if the player’s first two cards total 21 points.

An ace-king, ace-queen, ace-jack, and ace-10 each total 21 and

are automatic winners. There are no automatic wins in poker.

38. Big Poker 21 and Florida Twenty-One both restrict the

player’s ability to draw cards. This restriction is based on the

point total. A player who accumulates 20 points is not allowed

to draw any more cards. The game of poker does not restrict a

player’s ability to draw cards simply because the player has

attained a particular hand.

39. There is no possibility of bluffing in Big Poker 21

since players make their bets before they view their cards.

40. Big Poker 21 and Florida Twenty-One are variations of

the game of Black Jack, or “ Twenty-One,” as it is often called.

Black Jack developed in the 1850s and was often played in a non-

banking manner. It is still sometimes played today in a non-

banking manner.

41. The Petitioner’s proposed “poker” game called Sure 2

Win includes a five-card hand, or “showdown” portion, which

violates the fundamental rule of poker that players have to be

able to make a bet after viewing their cards so that bluffing is

possible. All participants must participate in the “showdown”

portion. In the “showdown” portion of the game, the players

wager before viewing their cards, which are then turned up to

reveal the winning hand, with no further opportunity to bet.

42. The winner of the showdown portion of Sure 2 Win wins

strictly by chance since the player has no control over the deal

of the cards, no opportunity to view the cards before making a

bet, no opportunity to bluff, no opportunity to draw cards in

order construct a higher ranked hand, and no control over the

outcome of the showdown portion.

43. The player who wins in the showdown portion of the game

is not eligible to play the seven-card portion of the game.

Other players can decide whether to bet on the seven-card portion

of the game; however, that decision has absolutely no effect on

the outcome of the five-card portion of the game.

CONCLUSIONS OF LAW

44. Under Section 120.56(2), Florida Statutes ( Supp.

1996):

The [proposed rule challenge] petition shall state with

particularity the objections to the proposed rule and

the reasons that the proposed rule is an invalid

exercise of delegated legislative authority. The

agency then has the burden to prove that the proposed

rule is not an invalid exercise of delegated

legislative authority as to the objections raised.

45. Section 120.52(8), Florida Statutes ( Supp. 1996 ),

provides:

"Invalid exercise of delegated legislative authority"

means action which goes beyond the powers, functions,

and duties delegated by the Legislature. A proposed or

existing rule is an invalid exercise of delegated

legislative authority if any one of the following

applies:

(a ) The agency has materially failed to follow the

applicable rulemaking procedures or requirements set

forth in this chapter;

(b ) The agency has exceeded its grant of rulemaking

authority, citation to which is required by

s. 120.54(3)(a )1.;

(c ) The rule enlarges, modifies, or contravenes the

specific provisions of law implemented, citation to

which is required by s. 120.54(3)(a)1.;

(d ) The rule is vague, fails to establish adequate

standards for agency decisions, or vests unbridled

discretion in the agency;

(e ) The rule is arbitrary or capricious;

(f ) The rule is not supported by competent

substantial evidence; or

(g ) The rule imposes regulatory costs on the

regulated person, county, or city which could be

reduced by the adoption of less costly alternatives

that substantially accomplish the statutory objectives.

46. Sections 120.52(8) and 120.536(1), Florida Statutes

( Supp. 1996 ), both also provide:

A grant of rulemaking authority is necessary but not

sufficient to allow an agency to adopt a rule; a

specific law to be implemented is also required. An

agency may adopt only rules that implement, interpret,

or make specific the particular powers and duties

granted by the enabling statute. No agency shall have

authority to adopt a rule only because it is reasonably

related to the purpose of the enabling legislation and

is not arbitrary and capricious, nor shall an agency

have the authority to implement statutory provisions

setting forth general legislative intent or policy.

Statutory language granting rulemaking authority or

generally describing the powers and functions of an

agency shall be construed to extend no further than the

particular powers and duties conferred by the same

statute.

47. Section 849.086(4), Florida Statutes ( Supp. 1996 ),

provides in pertinent part:

AUTHORITY OF DIVISION .—The Division of Pari-mutuel

Wagering of the Department of Business and Professional

Regulation shall administer this section and regulate

the operation of cardrooms under this section and the

rules adopted pursuant thereto, and is hereby

authorized to:

(a) Adopt rules, including, but not limited to: the

issuance of cardroom and employee licenses for cardroom

operations; the operation of a cardroom ; recordkeeping

and reporting requirements; and the collection of all

fees and taxes imposed by this section.

(b) Conduct investigations and monitor the operation of

cardrooms and the playing of authorized games therein.

( emphasis added.)

48. Section 550.0251(12), Florida Statutes ( Supp. 1996 ),

also provides in pertinent part:

The division shall have full authority and power to

make, adopt, amend, or repeal rules relating to

cardroom operations, to enforce and to carry out the

provisions of s. 849.086, and to regulate the

authorized cardroom activities in the state.

49. Section 849.086(2)(a), Florida Statutes ( Supp. 1996 ),

defines authorized games as “those games authorized by s.

849.085(2)(a) and which are played in a non-banking manner.”

50. Section 849.085(2)(a), Florida Statutes (1995),

authorizes “Penny-ante games” and defines them as follows:

“Penny-ante game” means a game or series of games of

poker, pinochle, bridge, rummy, canasta, hearts,

dominos, or mah-jongg in which the winnings of any

player in a single round, hand, or game do not exceed

$10 in value.

51. It is concluded that Sections 849.086(4) and

550.0251(12), Florida Statutes ( Supp. 1996), authorize the

adoption of proposed Florida Administrative Code Rule 61D-11.026,

and that Florida Administrative Code Rule 61D-11.026 properly

implements Sections 849.086(2)(a) and 849.085(2)(a), Florida

Statutes ( Supp. 1996).

52. It is clear from the evidence that a rule definition

of “poker” is necessary. Without one, it could be argued, as the

Petitioner has, that Big Poker 21 and Florida Twenty-One--games

more similar to Black Jack or 21--and a pure game of chance like

the first portion of Sure 2 Win are poker. In addition, it could

be argued that all of the “indeterminate number of games based on

Poker” contained in Hoyle’s and the New Complete Hoyle Revised ,

including the many that are “wild beyond belief,” are poker.

Finally, Hoyle’s and the New Complete Hoyle Revised also include

“dealer’s choice” games that are “poker” essentially because the

dealer says they are. The New Complete Hoyle Revised

acknowledges that some dealer’s choice games are not variations

of poker at all. As a clearly necessary definition of “poker,”

proposed Florida Administrative Code Rule 61D-11.026 only

implements Sections 849.086(2)(a) and 849.085(2)(a), Florida

Statutes ( Supp. 1996); it does not enlarge, modify, or contravene

those statutes. Cf . Section 120.52(8)(b)-(c), Florida Statutes

( Supp . 1996). See also General Telephone Co. of Fla. v. Marks ,

500 So. 2d 142, 144 (Fla. 1986) ; Fairfield Communities v. Fla.

Land and Water Adjudicatory Comm’n , 522 So. 2d 1012 (Fla. 1 st DCA

1988) ; Seminole Tribe of Fla. v. Dept. of Business Reg., Div. of

Alcoholic Beverages and Tobacco , 496 So. 2d 193 (Fla. 1 st DCA

1986) ; Dept. of Prof. Reg., Bd. of Medical Examiners v. Durrani ,

455 So. 2d 515 (Fla. 1 st DCA 1984).

53. It also is concluded, as reflected in the findings,

that proposed Florida Administrative Code Rule 61D-11.026 is not

arbitrary or capricious, and that it is supported by competent

substantial evidence. Cf . Section 120.52(8)(e)-(f), Florida

Statutes ( Supp . 1996). See also Bd. of County Comm’n’rs of

Brevard v. Snyder , 627 So. 2d 469, 474 (Fla. 1993) (competent,

substantial evidence) ; Degroot v. Sheffield , 95 So. 2d 912 (Fla.

1957)(competent, substantial evidence) ; Dravo Basic Materials

Co., Inc., v. Dept. of Transp. , 602 So. 2d 632, 634 (Fla. 2 nd DCA

1992)(arbitrary and capricious) ; Agrico Chem. Co. v. Dept. of

Environmental Reg. , 365 So. 2d 759, 763 (Fla. 1 st DCA 1978)

(arbitrary and capricious). Although proposed Florida

Administrative Code Rule 61D-11.026 would eliminate many dealer’s

choice games in Hoyle’s and the New Complete Hoyle Revised , it

incorporates the characteristics of standard poker described in

Hoyle’s and is supported by expert testimony as to the

characteristics of standard poker.

54. Florida Administrative Code Rule 61D-11.002, adopted on

January 7, 1997, required all card games be approved by the

Division and provides in pertinent part:

(2)(a ) All card games in Hoyle's Modern Encyclopedia

of Card Games, by Walter B. Gibson, published by

Doubleday and Company, Inc., April 1974 1st Edition

hereinafter ( Hoyle's) incorporated herein by reference,

that are authorized by and played in a manner

consistent with Section 849.085(2)(a) and Section

849.086, Florida Statutes, and the rules promulgated

thereunder, shall be approved by the division. All

other card games shall be approved by the division if

the type of card games and the rules of the card games,

as specified in BPR Form 16-001, meet the requirements

of Section 849.085(2)(a) and Section 849.086, Florida

Statutes, and the rules promulgated thereunder.

Florida Administrative Code Rule 61D-11.003(1), also adopted on

January 7, 1997, provided in pertinent part:

The ranking of cards in a hand shall be consistent with

the rules of Hoyle’s or the modified rules of the game

as submitted to the Division by the cardroom operator

and approved by the Division.

55. As found, it would appear that Florida Administrative

Code Rules 61D-11.002(2)(a) and 61D-11.003(1), as written, may

have contemplated the approval of all poker games in Hoyle’s , so

long as they are played in a non-banking manner. However,

subsequent experience under the rules led to the Division’s

incipient policy and to proposed Florida Administrative Code Rule

61D-11.026. Proposed Florida Administrative Code Rule 61D-11.026

is not inconsistent with Florida Administrative Code Rules

61D-11.002(2)(a) and 61D-11.003(1). Rather, it clarifies and

refines the earlier rules.

56. Even if the Division’s approvals of Hollywood 2-3

Flash, Hollywood 4-3 Flash, and Three-Card Stud on January 10,

1997, were contrary to the Division’s incipient policy and raised

a question as to how definite and firm the policy was at that

time, those approvals did not prevent the Division from proposing

Florida Administrative Code Rule 61D-11.026 to make its policy

clear. To the contrary, that is what agencies are supposed to

do.

DISPOSITION

Based on the foregoing Findings of Fact and Conclusions of

Law, the Petition for Administrative Determination of the

Invalidity of Proposed Rule challenging proposed Florida

Administrative Code Rule 61D-11.026 is denied, and the proposed

rule is declared valid.

DONE AND ORDERED this 19th day of August, 1997, in

Tallahassee, Leon County, Florida.

________ ___________________________

J. LAWRENCE JOHNSTON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488- 9675 SUNCOM 278-9675

Fax filing [phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 19th day of August, 1997.

COPIES FURNISHED:

Miriam S. Wilkinson, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-1007

Harold F. X. Purnell, Esquire

Rutledge, Ecenia, Underwood,

Purnell and Hoffman

215 South Monroe Street, Suite 420

Tallahassee, Florida 32301-1841

Deborah R. Miller, Director

Division of Pari-Mutuel Wagering

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-1007

Lynda L. Goodgame

General Counsel

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-0792

Carroll Webb, Executive Director

Administrative Procedures Committee

120 Holland Building

Tallahassee, Florida 32399-1300

Liz Cloud, Chief

Bureau of Administrative Code

Department of State

The Elliot Building

Talllahassee, Florida 32399-0250

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final Order is entitled

to judicial review pursuant to Section 120.68, Florida Statutes.

Review proceedings are governed by the Florida Rules of Appellate

Procedure. Such proceedings are commenced by filing one copy of

a notice of appeal with the Agency clerk of the Division of

Administrative Hearings and a second copy, accompanied by filing

fees prescribed by law, with the District Court of Appeal, First

District, or with the District Court of Appeal in the Appellate

District where the party resides. The notice of appeal must be

filed within 30 days of rendition of the order to be reviewed.