12-000142 Department Of Business And Professional Regulation, State Boxing Commission vs. American Amateur Mixed Martial Arts, Inc., A/K/A United States Amateur Mixed Martial Arts, Inc. Status: Closed Recommended Order on Thursday, June 20, 2013.

Summary: Document incorporated by rule created unintelligable standards that were subject to variable interpretations. Evidence did not show violations of such vague rules or violation of statute for unprofessional/unethical conduct.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND

PROFESSIONAL REGULATION, STATE

BOXING COMMISSION ,

Petitioner ,

vs. Case No. 12 - 0142

AMERICAN AMATEUR MIXED MARTIAL

ARTS, INC., a/k/a UNITED STATES

AMATEUR MIXED MARTIAL ARTS,

INC. ,

Respondent .

/

RECOMMENDED ORDER

Pursuant to notice, a f inal h earing was held in this case

before the Honorable Diane Cleavinger, Administrative Law Judge ,

Division of Administ rative Hearings , on August 21 through 23 and

December 19 through 20, 2012 , in Pensacola Florida .

APPEARANCES

For Petitioner: Cristin Erica White, Esquire

William Gautier Kitchen, Esquire

Dustin William Metz, Esquire

Kyle Christopher, Esquire

Elizabeth F. Henderson, Esquire

Department of Business

and Professional Regulation

1940 North Monroe Street

Tallahas see, Florida 32399 - 2202

For Respondent: Melissa Posey Furman, Esquire

Furman and Furman Attorneys, LLP

Post Office Box 610

Loxley, Alabama 36551 - 0610

STATEMENT OF THE ISSUE

Whether R espondent, American Amateur Mixed Martial Arts,

Inc. 's (AAMMA), license as an amateur mixed martial arts

sanctioning organization, should be disciplined and, if so, the

penalty therefore.

PRELIMINARY STATEMENT

On December 19, 2011, Petitioner, State Boxing Commission

(Commission) , through the Department of Business and Profess ional

Regulation (DBPR) filed a Second Amended Administrative

C omplaint 1 / against Respondent alleging that RespondentÓs license

as an amateur mixed martial arts sanctioning organizatio n should

be disci plined for alleged violations of chapter 54 8, Florida

Statutes (2010 - 2011) . Specifically , Petitioner alleged that

RespondentÓs license should be disciplined for v iolating sections

548.071(1) (violation of Commission rules) an d 548.071 (4)

(unprofessional and unethical conduct) for failure to enforce the

health and safety standards in the International Sport Kickboxing

Association (ISKA) amateur rules overview (Overview), by

permitting minors to compete in amateur mixed martial arts (MMA)

ma tches sanctioned by Respondent on January 29, 2011,

February 26, 2011, May 6, 2011, July 16, 2011, and August 13,

2011 ; by allowing fighters to engage in MMA matches outside of

the ISKA Overview's weight classes on July 16, 2011 ; and

violating section 548. 071 (4) by allowing one of its volunteer

members to mislead the American Legion Post #75 into signing a

letter that incorrectly stated the American Legion was the sole

sponsor of RespondentÓs May 6, 2011, amateur event.

Respondent disputed the allegations o f the Administrative

Complaint and timely requested a formal administrative hearing on

January 10, 2012 . Thereafter , the case was referred to the

Division of Administrative Hearings (DOAH) for formal hearing.

At the hearing, Petitioner presented the testimony of ten

witnesses . Petitioner also offered 18 exhibits numbered 19, 23,

24, 25, 28, 31, 42, 44, 46, 56, 76, 77, 78, 79, 83, 95 , and 98;

and RespondentÓs Exhibit 86, which were admitted into evidence

except for PetitionerÓs Exhibit 25 which was ad mitted into

evidence for a limited purpose.

Respondent presented the testimony of eight witn esses and

offered nine exhibits numbered Respondent's Exhibits 61, 64, 65,

66, 67, 162, 191, 194, and 201, which were admitted into

evidence. Further, Respo ndents Exhibits 64, 65, 66, and 67 were

admitted into evidence for a limited purpose.

The parties also stipulated to the admissibility of

RespondentÓs Exhibits 58, 59, 62, 63; and PetitionerÓs Exhibits

8, 9, 12, 26, 27, 43, 62, 63, 64, 65, and 66. Petiti onerÓs

C omposite Exhibit 43 was admitted into evidence with the

exception of the attached flyer, which is the last page of

PetitionerÓs C omposite Exhibit 43. Further, Official Recognition

was taken of Florida Administrative Code R ule 61K1 - 1 ;

PetitionerÓs Exhibits 1 through 6, 8, 9, and 11; and RespondentÓs

Exhibits 104, 129, and 130.

Eight volumes of Transcripts were filed at DOAH on

October 11, 2012, and February 6, 2013. Volumes I - VI were for

testimony taken on August 23, 2012. The volumes filed for

testimony taken on December 12, 2012, were incorrectly identified

by the court reporter as Volumes VI and VII.

After the hearing, Petitioner filed a Proposed R e commended

Order on March 6, 2013. Similarly, Respondent filed a Proposed

Recommended Order on March 8, 2013.

FINDING S OF FACT

1. Mixed Martial Arts (MMA) is a form of combat that grew

out of Mui Thai . MMA c ombines two or more forms of martial arts

(grappling, boxing, karate, etc.) and involves throws and strikes

with the feet, hands and knees. Over the years, such combat has

also been known by a variety of names, such as, Brazilian

kickboxing, No Holds Barred fig hting , or Ultimate Fighting, etc.

Additionally, MMA schools and training ha ve grown significantly

in popularity. Further, a s with most sports, MMA competition

developed in both the professional and amateur arenas, with some

states regulating amateur and/or professional competition and

some states not regulating such competit i on. Additionally, MMA

competitions and related items have grown into a significantly

large market in the sports industry.

2 . Prior to July 1, 2008, the S tate of Florida in c hapter

548, Florida Statutes, the law governing the State Boxing

Commission and certain pugilistic events, prohibited sanctioning

or ho lding amateur mixed martial arts matches in Florida. In

2008, c hapter 2008 - 240, Laws of Florida, was enacted and, among

other things, amended section 548.008, to eliminate the state's

prohibition of amateur mixed martial arts matches. The Act also

provid ed that the Commission could summarily suspend "the

approval of an amateur sanctioning organization" and/or suspend

one or more sanctioned amateur matches or events for violation of

to be established health and safety standards. Ch. 2008 - 240 , §

41 , at 32, Laws of Fla., amending § 548.0065(4). Oddly, t he Act

did not appear to provide for the licensure or regulation of

amateur MMA sanctioning organizations. Finally, the Act provided

that professional MMA fighters, known as "participants , " could

not be lice nsed if the fighter was under 18 years of age and had

not participated in a minimum number of amateur MMA matches. Ch.

2008 - 240 , § 43 at 33, Laws of Fla., amending § 548.041(1).

3. In 2009 , c hapter 2009 - 195, Laws of Florida , amended

section 548.003(k), to permit the regulation and licensure of

amateur mixed martial arts sanctioning organizations in Florida.

In general, t he regulation of such matches was placed under the

auspices of the State Boxing Commission , which was granted the

authority to adopt h ealth and safety rules for amateur mixed

martial arts matches and license amateur sanctioning

organizat ions for mixed martial arts. More importantly, the

Commission was given the authority to:

" adopt by rule, or incorporate by reference

into the rule, . . . the health and safety

standards of the International Sport

Kickboxing Association as the . . . minimum

health and safety standards for an amateur

mixed martial arts sanctioning organization."

§ 548.003(k), Fla. Stat.

4. However and confusingly , the I nternational Sport

Kickboxing Association does not exist, but is a name sometimes

used by the International Sport Karate Association , Inc., which

has moved into the area of kickboxing and MMA . The Association

uses the initials "ISKA" to reference it s orga nization by either

name ; and, i t is the International Sport Karate Association that

appears to be the organization to which the legislature was

referring when it enacted chapter 2009 - 195, Laws of Florida.

5 . On March 15, 2010, Florida Administrative Code Rule

61K1 - 1.0031(1)(c) , which previously governed only amateur boxing

and kickboxing sanctioning organizations , was amended to add

amateur MMA sanctioning organizations. The result is a rule, as

it is now composed, that is very confusing partly due to the

addition of amateur MMA sanctioning organizations to a rule that

was originally written for boxing and kickboxing sanctioning

organizations. T he rule states:

(1) Criteria for Approval. An amateur

sanctioning organization seeking approval

from the . . . Commission to sanction and

supervise matches involving amateur boxers or

kickboxers shall meet the following criteria:

(emphasis supplied)

(a) For amateur boxing . . . .

(b) For amateur kickboxing . . . .

(c) For amateur mixed martial arts, a

statem ent of agreement to adopt and enforce

the health and safety Standards of the

International Sport Kickboxing Association

(ISKA) as provided in the ISKA Amateur Rules

Overview, incorporated by reference,

effective July 2008. (emphasis added ) .

* * * *

The remainder of the rule addresses required agreements by the

amateur sanctioning organizations which, among other things,

address health and safety issues involving required minimum

ambulance service; emergency health equipment at matches; "on -

call" ambulanc e service; event physicians and their

qualifications; approval of applications; and disciplinary

actions against a licensed amateur sanctioning organization.

Because of the wording of the rule, it is unclear whether any of

these other subsections of the r ule apply to amateur MMA

organizations or only to amateur boxing and kickboxing

organizations . Evidence suggests that these provisions apply to

amateur MMA organizations. T he disciplinary subsection of the

rule refers to violation "of the provisions of s ection 578.041,

F lorida S tatutes ." However, c hapter 578, Florida Statutes,

titled "The Florida Seed Law," does not relate to boxing,

kickboxing or MMA, but involves agriculture. In fact, s ection

578.041 does not exist within that chapter and the referenc e

appears to be a typographical error with the intended Commission

statute being referenced left unclear. 2 / Unfortunately, the

statutory reference to a non - existent statute has not been

corrected in the more than two years since the rule's adoption

and se rves to highlight the problems the Commission has in its

regulatory rules and their enforcement.

6. As indicated, the 2010 amendment to Rule 61K1 - 1.0031

incorporated by reference only the health and safety rules

contained in the 2008 version of the ISKA R ules Overview. In

fact, the ISKA R ules Overview is a general document that contains

a va riety of sections and requirements related to running ÐISKAÑ

amateur MMA events consisting of individual matches with ÐISKAÑ

officials and certifications . Such ÐISKAÑ - related references

create confusion as to what part of the ISKA Overview applies at

non - ISKA events and/or to sanctioning organizations, such as

Respondent, who are not affiliated with ISKA.

7. More importantly, the ISKA Overview address es a variety

of things necessary to put on an ISKA amateur MMA event and come

to a valid and fair decision in the matches. As such , the

document contains rules related to fee s , proceeds and ticket

sales that are clearly unrelated to the health and safety of

fighters. O ther sections relate to the equipment, ring,

personnel (referees, timekeepers, etc.) and scoring requirements

for an event , as well as, a section on legal technique s and

fouls. None of the sections in the ISKA Overview are

specifically identified as healt h related. In fact, t here is

only one section, Section VI , titled "Physical Examinations and

Safety Regulations," that appears to contain the identifiable

minimal health and safety regulations that the Commission has the

authority to adopt. This section does not contain any

restrictions on age or weight. The section does contain health

and safety rules regarding required physical examination of

fighters, attending physicians, ringside physicians, activities

of seconds during a fight and presence of an em ergency mobile

unit. However, the section also contains rules related to fees

to be provided to the physician and rules related to who is

responsible for paying such fees. Such fee provisions do not

appear to relate in any way to the health and safety of a

fighter , but have been i ncorporated by reference in rule 61K1 -

1.0031 . T he section also contains language that prohibits a

ringside physician or second from treating a fighter Ó s injury .

Again, these provisions do not appear to be related to the health

and safety of a fighter , but are incorporated by reference .

8 . Apart from Section VI described above, Section III(6) of

the ISKA Overview prohibits a person who is under the age of 18

from competing in an ÐISKA MMA event.Ñ The rule does not address

non - ISKA events leaving it open to interpretation whether this

ÐprohibitionÑ is applicable to Respondent.

9. Moreover, t he evidence did not show that the Commission

issued an official s tatement interpreting the age prohibition as

a minimal health standard prior to the events at issue in this

case . The claim that DBPR staff or investigat ors told Respondent

about any Co mmission policy related to the age of a fighter or

the ISKA Overview was not supported by the evidence and was not

credible. In fact, the ev idence demonstrated that ISKA itself

did not interpret the age prohibition as a minimal health

standard when it included matches for fighters under age 18 in at

least one of its event s and developed a "sport" MMA program in

which minors could and did compe te in MMA tournaments sanctioned

by ISKA . Notably, ISKA was not disciplined for these matches.

Further, the evidence showed that whether an age prohibition of

18 is viewed as a health issue depended on the martial arts

background of the individuals inter preting the ISKA Overview,

since, as with the individuals in RespondentÓs organization, some

martial arts, such as boxing, permit fighters under the age of 18

to compete in either junior matches or compete as adults

depending on the fighterÓs level of skil l. Indeed, the age

prohibition appears to be a physical standard and not a health

standard for purposes of matchmaking at ISKA events .

10 . Similarly, Section III(2) of the ISKA Overview sets

forth modifiable weight classes for fighters competing in its

matches . Unless modified, the weight classes for male mixed

martial arts contained in the ISKA Overview are :

(a) Flyweight 124.9 lbs and less;

(b ) Featherweight 125 lbs Î 134.9 lbs;

(c ) Bantamweight 135 lbs Î 144.9 lbs;

(d ) Lightweight 145 lbs Î 154.9 lbs;

(e ) Welterweight 155 lbs Î 169.9 lbs;

(f ) Middleweight 170 lbs Î 184.9 lbs;

(g ) Light - Heavyweight 185 lbs Î 204.9 lbs;

(h ) Heavyweight 205 lbs Î 234.9lbs;

(i ) Super Heavyweight 236 lbs and up.

11. However, s uch modifiable criteria do n ot constitute

minimal health standards , but only establish variable physical

standards used in efficient matchmaking at an ISKA event and are

dependent on differing interpretations that can be given to the

ISKA O verview. Moreover, the evidence showed that such weight

classifications would be inappropriate in smaller non - tournament,

MMA events, such as those involved here, where matchmaking is

based more on a fighterÓs level of skill than on a fighterÓs

weight.

12 . Significantly, since the Commission incor porated the

entire ISKA Rules Overview into Rule 61K1 - 1 without identifying

specific parts of that document that it considered to be the

minimal health and safety ISKA rules it intended to adopt , it

created an unintelli gible set of rules that result in dif fering

interpretations as to the minimal health and safety standards it

contains and fails to put individuals on notice as to the minimal

health and safety standards required by the Commission .

1 3 . In 2010 and 2011 , Respondent was licensed and regulated

by Petitioner as an amateur sanctioning organization, holding

license numbers AMAT 8 (boxing) , AMAT 9 (kickboxing) , and AMAT 10

(MMA) , with only the MMA license as the direct subject of the

Administrative Complaint at issue here. 3 / In fact, Respondent's

amateur MMA license was issued to it on July 7, 2010.

14 . In order to become licensed , Respondent , using the ISKA

rules as its model, developed a set of r ules for its events which

it submitted to the Commission with its licensure application .

As a conseq uence, Petitioner approved Resp ondentÓs license based

on its application ; agreement to enforce, "at a minimum,"

unspecified health and safety standards contained in ISKA rules ;

and the rules Respondent adopted for its sanctioning

organization . The license was issued with the condition that any

changes to Respondent's rules or standards be submitted to the

Commission. Notably, the Commission has no authority to approve

the rules or standards adopted by Respondent for it s sanctioning

body , but only has auth ority to license an amateur sanctioning

organization or discipline an organization for failing to comply

with licensure requirements.

1 5 . The first iteration of RespondentÓs rules prohibit ed

minors from engaging in mixed martial arts matches and provided

for weight classes with corresponding weight differentials to be

used in tournament (larger) type s of events . Respondent's

original rules provided tournament weight classes with weight

differentials as follows:

(a ) Light Flyweights 106 lbs . differ ential 8 lbs. ;

(b ) Flyweights 112 lbs . differential 8 lbs. ;

(c ) Bantamweights 119 lbs . differential 8 lbs. ;

(d ) Featherweights 125 lbs . differential 8 lbs. ;

(e ) Lightweights 132 lbs . differential 10 lbs. ;

(f ) Light Welterweights 141 lbs . differential 10 lbs. ;

(g ) Welterweights 152 lbs . differential 10 lbs. ;

(h ) Middleweights 165 lbs . differential 10 lbs. ;

(i ) Light heavyweights 178 lbs . differential 15 lbs. ;

(j ) Heavyweights 201 lbs . differential 1 5 lbs. ;

(k ) Super Heavyweights Over 215 lbs. differential none;

16. However, Respondent , around July 20, 2010 , modified its

rules to permit minors to compete in mixed martial arts events

under a program of "modified martial arts . " The amended rules

reg arding minors were modeled afte r Olympic rules and USA Boxing

r ules which permit minors to compete at their events and permit

sufficiently skilled 17 - year - olds to compete against adults .

These modified rules were se nt to the Commission as required .

17 . Further, t he rules provided for "junior athletes" to

wear headgear and stated in paragraph 6 under the section titled

"Student Athlete Eligibility" :

A ll student athletes must be 18 years of age

or older. In states where Junior MMA is

approved, student a thletes must be 13 years

of age or older with no more than a 24 month

age difference between the competing

students .

The modified rules also contained weight classes for tournament -

type events; however, the number of classes was reduced with the

weight differentials for the new classes adjusted.

18 . Later , at some point prior to December 2011, the

Respondent amended its rules for a third time and provided the

amended rules to the Commission. Again, the amended rules were

modeled after Olympic ru les and USA Boxing rules. Although not

stated, the amended rules indicate and tried to clarify that

17 - y ear - olds may be considered adults or juniors depending on the

match. The amended rules also provided that junior athletes wear

headgear and stated in paragraph 6 under Student Athlete

Eligibility :

Student athletes must be 13 - 16 years of age

with no more than a 24 - month age difference

between the competing student athletes.

There will be no more than a 10 lb. weight

difference between competitors and i n all

circumstances, the experience of the

competitors must be taken into consideration.

**A 15 - or 16 - year - old may compete against a

17 - year - old as long as the Junior MMA rules

are followed.**

19. The amended rules also modified the tournament weigh t

classes and weight differentials for each class , as well as

removed weight class names . Respondent's amended rules provided

tournament weight classes with weight differentials as follows:

(a) 70 lbs. differential 5 lbs.;

(b) 75 lbs. differ ential 5 lbs.;

(c) 80 lbs. differential 5 lbs.;

(d) 85 lbs. differential 5 lbs.;

(e) 90 lbs. differential 5 lbs.;

(f) 95 lbs. differential 5 lbs.;

(g) 100 lbs. differential 5 lbs.;

(h) 106 lbs . differential 9 lbs. ;

(i) 11 5 lbs . differential 10 lbs. ;

(j) 1 25 lbs . differential 10 lbs. ;

(k) 135 lbs . differential 10 lbs. ;

(l) 145 lbs . differential 10 lbs. ;

(m) 155 lbs . differential 10 lbs. ;

(n ) 165 lbs . differential 10 lbs. ;

(o ) 175 lbs . diff erential 15 lbs. ;

(p) 20 0 lbs . differential 15 lbs. ;

(q) over 201 lbs differential no limit .

20 . On February 21, 2011, Representatives of Respondent

appeared at the Commission meeting to discuss the changes to its

rules. It was unclear in the evid ence which set of Respondent's

amended rule s was being considered by the Commission. Further,

t he evidence was not clear as to the details of what occurred at

this meeting . However, the focus of the meeting regarding these

amended rules seemed to be on a llowing strikes known as "ground

and pound" to be used in amateur MMA matches and that DBPR staff

did not approve of the Respondent's modified rules. Such staff

opinion does not establish Commission policy. However, after a

break in the proceedings, Resp ondent withdrew its modified

martial arts rules from further consideration at the meeting

since RespondentÓs representatives believed the Commission had no

authority to approve or disapprove a sanctioning organizationÓs

rules.

21 . This withdraw al create d some confusion within DBPR as

to which set of rules were in effect for Respondent, with DBPR

investigatorÓs incorrectly insisting that the only valid rules

Ðapproved by the CommissionÑ that Respondent could use were the

rules Respondent had initially ado pted when it was licensed.

Further, DBPRÓs position would cause confusion between the

investigators and Respondent during the time period of this case

since Respondent believed it had established a valid junior MMA

program and utilized appropriate matchma king criteria for setting

matches . In short , because these rules were the adopted rules of

Respondent, the organization sanctioned and conducted matches

pursuant to the Ðmodified martial artsÑ rules and allowed minors

to co mpete in Ðmodified martial arts Ñ or the "junior MMA

program." Seventeen - year - old fighters could compete as either a

junior or an adult, depending on the fighter ' s skills.

22 . Kody Down s is a well - trained MMA fighter who has

competed in MMA events in Florida and other states for a numbe r

of years. His birthday is August 5, 1993. In 2011 , at the age

of 17, Mr. Downs had sufficiently high MMA skills to qualify for

competition against adults at MMA events and had competed as an

adult in other states.

2 3 . On January 29, 2011, Respondent s anctioned an amateur

pugilistic event, at the Pensacola Beach Hilton hotel. In that

event, Respondent matched Mr. Downs, who was a little over six

months away from turning 18, with 23 - year - old Chris Hart in an

MMA match. The opponents were evenly matched based on their

fighting skills and the match proceeded to a decision with Mr.

Downs winning the match against Chris Hart.

2 4 . On February 26, 2011, Respondent sanctioned an amateur

pugilistic event, entitled Ð Gulf Coast Fight Fest 6 , Ñ at 1621 Dog

T rack R oad in Pensacola, Florida. Respondent matched Mr. Downs,

who was a little over five months away from turning 18, with 23 -

year - old Edwin Ladley in an MMA match. Again, t he opponents were

evenly matched on their fighting skills, with Mr. Downs winning

the match .

25 . The evidence showed that a ll of the fights involving

Kody Downs were matched according to Respondent's rules which

were intended to provide, however inarticulately, that fighters

under the age of 18 could compete under certain circumstances a nd

at certain skill levels. Moreover, as discussed earlier, the

evidence did not demonstrate that the ISKA Overview regarding age

was a minimum health and safety requirement. More importantly,

the Commission Ó s carte blanche incorporation of the ISKA Over view

and lack of official policy on the issue made it impossible for a

reasonable person to determine whether the ISKA age restriction

was a health or safety requirement in amateur MMA events and left

interpretation of such requirements open to varying

int erpretations depending on an organization's or individual's

martial arts background. Respondent followed the lead of the

U.S. Olympic committee and the U.S. A. Boxing association which

permitted matches similar to those involving Kody Downs. In

fact, Resp ondent's matchmaking based on a fighter's skills was

shown by the evidence to be professional and ethical. Given

these facts, no violations of the Commission's rules or

unprofessional/unethical conduct under chapter 548, Fl orida

Stat ute s, was shown by the evidence and the allegations of the

Administrative Complaint related to Kody Downs should be

dismissed.

26 . On July 16, 2011, Respondent sanctioned an amateur

pugilistic event at Bay Banquet Hall, 5420 Hickory Street, in

Panama City, Florida. Respondent matched 17 - year - old Jacob Owens

with 21 - year - old Brandon Grooms in an MMA match . Like all of

Respondent's matches involving age issues, the opponents were

appropriately matched based on their fighting skills. Mr. Owens

won the match against Brandon Groo ms . Notably, a s with the

underage allegations involving Kody Downs, there were no

violations of the Commissions' rules or unethical/unprofessional

conduct shown by the evidence and the allegations of the

Administrative Complaint relative to Mr. Owens shou ld be

dismissed.

27 . Additionally, a t the July 16 event in Panama City,

Respondent matched heavyweight Robert Birge , weighing 206 pounds ,

with super heavyweight Travis Grooms, weighing 267 pounds in an

MMA match . Whether either fighter is labeled a heavy weight or a

super heavyweight depends on whether the weight classes set forth

in the ISKA Overview which contained named weight class es , or the

Respondent's rules which did not contain named weight categor ies ,

is used . In either case, Robert Birge and Tra vis Grooms competed

outside the weight requirement s articulated in the ISKA Overview ,

but within the weight requirements adopted in RespondentÓs r ules .

These contestants were matched appropriately according to their

level of skill, with t he lighter weight fighter w inning the

match. More importantly , as indicated earlier, the ISKA weight

rules are subject to modification and were not shown to be

minimum health requirements within the ISKA Overview. However,

e ven assuming the very unclear ISKA weight rules are minimum

health and safety requirements, the evidence showed that these

rules were appropriately modified by Respondent based on the

skills of the fighters involved and non - tournament nature of the

event being held. Given these facts, there were no vi olations of

the Commission Ó s rules or c hapter 548 and the allegations

regarding violations of the ISKA weight rules should be

dismissed.

28 . On August 13, 2011, Respondent sanctioned an amateur

pugilistic event, at the North Florida Fairgrounds, 441 Paul

Russell Road, Tallahassee, F lorida . During the event, 15 - year -

old Josh Douglas competed in a n exhibition mix ed martial arts

match against 17 - year - old Jonathan Tyler Dew. Both contestants

wore protective headgear as provided in Respondent's rules and

were appropriately matched . Again, as indicted earlier, no

violations of the Commission's rules or unethical/unprofessional

conduct by Respondent was demonstrated by the evidence and the

allegations of the Administrative Complaint related to Dew and

Douglas s hould be dismissed.

29 . On May 6, 2011, Respondent sanctioned an amateur

pugilistic event at Hooters Restaurant, located at 180 Cracker

Barrel R oad in Crestview, Florida. The event was put on by Sammy

Collingwood, who operated an MMA school in Crestview .

30. Mr. Collingwood's school was an "affiliated" school of

Respondent's organization. As an affiliated school,

Mr. Collingwood agreed to abide by the rules of Respondent.

However, such affiliation did not make Mr. Collingwood or his

school a represe ntative of Respondent. In fact, the evidence was

clear that Mr. Collingwood did not represent Respondent and that

Respondent only sanctioned the event under its rules . It was

Mr. Collin g wood who set up the venue, purchased insurance,

obtained the announc er for the event, and advertised the May 6,

2011, event. Respondent was not involved in the business details

of running the event and was not responsible for advertising the

event. Further, there was no credible or substantive evidence

that showed Respon dent had any knowledge regarding the content of

any of the advertisements for the Crestview event.

31 . Just p rior to the event, Sammy Collingwood , who did not

testify at the hearing, reported to Respondent that he Ðhooked

upÑ with the American Legion . Th ereafter, Respondent 's officials

discussed obtaining an exemption based on the American Le gion 's

sponsorship . Towards that end, Respondent requested Sammy

Collingwood to obtain a written statement from the American

Legion Post regarding their sponsorship . Mr. Collingwood

provided a letter on Respondent's letterhead from the Post

ind icating that the Post was the sole sponsor of the event.

32 . There was no credible or substantive evidence, as to

who drafted the American Legion letter or how it came to be on

Respondent's letterhead. However, the evidence was clear that no

official from Respondent drafted the letter or issued it as

Respondent's official statement.

3 3 . On the day of the Crestview event and prior to its

start , Larry Downs Jr., who was then a volunteer with AAMMA,

argued with DBPR investigator Jami McClellan Molloy, regarding

whether the May 6, 2011, event was exempt from state regulation

since it was his belief that the American Legion was the sole

sponsor of the event . Ultimately, the Post letter was not

utilized by the Respondent and not relied upon by the Commission.

34 . Unfortunately and u nknown to Respondent , the American

Legion Po st was not the sponsor of RespondentÓs May 6, 2011,

amateur pugilistic event. In fact, f ormer Post Comm ander, Rob

Davis, testified the Post did not sponsor the event . However,

the Crestview event was not held as an event e xempt from the

Commissio ns' regulations under section 548.007 , Fl orida Stat utes ,

and the evidence did not demonstrate any fraud on the p art of

Respondent. As such, these facts related to the letter provided

by Mr. Collingwood do not demonstrate that Respondent engaged in

unethical or unprofessional conduct relative to the Crestview

event and the allegations of the Administrative Complaint

regarding the same should be dismissed.

35 . At the Crestview event, Respondent matched Kody Downs,

who was three months away from turning 18, with 23 - year - old Erik

Register in an MMA match. However, the undisputed evidence

showed that the official match did not occur as scheduled; but,

that the two individuals engaged in a sparring match after the

Crestview event had ended.

36. Sparring matches are practice matches and are not

subject to regulation by the Commission. In fact, Mr. Downs and

Mr. Regist er were going to use protective gear during their

sparring. Mr. Register declined to use such equipment, desiring

instead to practice as if the match was a real fight. T he fact

that the practice match was similar to a regular match does not

change the ch aracterization of the match as a sparring match

especially since both participants described the match as such

and both participants wanted to practice their competition

skills, a legitimate goal in sparring matches. Given that no

official MMA match regul ated by the Commission occurred between

Mr. Downs and Mr. Register , no violations of the Commissions'

rules or unethical/unprofessional conduct occurred on

Respondent's part. Therefore, the allegations of the

Administrative C omplaint relative to this matc h should be

dismissed.

CONCLUSIONS OF LAW

37 . The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding . § 120.57, Fla . Stat . (2010 Î 2011).

38 . Petitioner licenses amateur sanctioning organizat ions

and inspects sanctioned pugilistic events in Florida as part of

its duties pursuant to c hapters 548 and 120, Florida Statutes,

and the rules promulgated thereto.

39 . Section 548.003(2)(k), Florida Statutes, grants the

Commission the authority and res ponsibility for:

Establishment of criteria for approval,

disapproval, suspension of approval, and

revocation of approval of amateur sanctioning

organizations for amateur boxing, kickboxing,

and mixed martial arts held in this state,

including, but not lim ited to, the health and

safety standards the organizations use

before, during, and after the matches to

ensure the health, safety, and well - being of

the amateurs participating in the matches,

including the qualifications and numbers of

health care personne l required to be present,

the qualifications required for referees, and

other requirements relating to the health,

safety, and well - being of the amateurs

participating in the matches. The commission

may adopt by rule, or incorporate by

reference into rule . . . the health and

safety standards of the International Sport

Kickboxing Association as the minimum health

and safety standards for an amateur

kickboxing sanctioning organization, and the

minimum health and safety standards for an

amateur mixed martial arts sanctioning

organization.

40 . Florida A dministrative Code R ule 61K1 - 1.0031 adopted

the health and safety standards contained in the ISKA Overview

and required amateur sanctioning organization s to agree to

enforce the health and safety standards pro vided in that

Overview.

41 . Because RespondentÓs license i s at risk, Petitioner has

the burden to establish by clear and convincing evidence the

allegations of the Administrative C omplaint . See

Ferris v. Turlington , 510 So. 2d 292 (Fla. 1987).

42 . ÐClea r and convincingÑ evidence was described by the

court in Evans Packing Co. v. Dep Ó t of Agric . & Consumer Servs . ,

550 So. 2d 112, 116. n.5 (Fla. 1st DCA 1989), as follows:

[C]lear and convincing evidence requires that

the evidence must be found to be credib le;

the facts to which the witnesses testify must

be distinctly remembered; the evidence must

be precise and explicit and the witnesses

must be lacking in confusion as to the facts

in issue. The evidence must be of such

weight that it produces in the mind of the

trier of fact the firm belief or conviction,

without hesitancy, as to the truth of the

allegations sought to be established.

Slomowitz v. Walker , 429 So. 2d 797, 800

(Fla. 4th DCA 1983).

43. PetitionerÓs i nterpretation of the statutes it

administers and over which it has jurisdiction, is afforded wide

discretion. Cone. v . State, Dept. of Health , 886 So. 2d 1007,

1009 (Fla. 1st DCA 2004). Likewise, as the court stated in

Republic Media, Inc. v. Dept. of Trans p . , 714 So . 2d 1203, 105

( Fla. 5th DCA 1998):

an agency is afforded wide discretion in the

interpretation of a statute which it is given

the power and duty to administer. Its

construction of the statute will not be

overturned on appea l unless its clearly

erroneous.

Moreover, e ven i f a Court takes issue with the agencyÓs

interpretation of a statute, Ðit shall not substitute its

judgment for that of the agency on an issue of discretion.Ñ

s ection 120.68(7), Fla . Stat . Natelson v. Dep Ó t of Ins. , 454

So.2d 31 (Fla. 1st DCA 1984). See Chevron U.S.A. v. Natural Res .

Def . Council, Inc. , 467 U.S. 837, 844 Î 845 (1984). See also

Bowles, Price AdmÓr v. Seminole Rock and Sand, Co. , 325 U.S. 410,

413 Î 414 (1945); Legal Envtl . Assistance Fund, Inc., v. Bd. of

Cnty. CommÓrs of Brevard Cnty . , 642 S o. 2d 1081, 1083 (Fla.

1994) ; and Pan Am. Airways, Inc. v. Fla . Pub . Serv. CommÓn , 427

So. 2d 716, 719 Î 20 (Fla. 1984) .

44. In disciplinary proceedings, however, the statutes and

rules for which a violation is alleged must be strictly construed

in favor o f Respondent. Elmariah v. DepÓt of ProfÓl Reg., 574

So. 2d 164 (Fla. 1 st DCA 1990); Taylor v. DepÓt of ProfÓl Reg.,

534 So. 2d 782, 784 (Fla. 1 st DCA 1988).

4 5 . In this case, Count I of the Administrative Complaint

involved alleged violations of the age restriction contained in

the ISKA Overview. As noted earlier , the Commission incorporated

the entire ISKA Rules Overview into Rule 61K1 - 1 without

identifying specific parts of that document that it considered to

be the minimal health and safety ISKA rule s it intended to adopt .

While this case is not a rule challenge, an agency must have

rules which are intelligible and not subject to varying

interpretations. In this case, the Commission's carte blanche

incorporation of the ISKA Overview created an unint elligible rule

that was subject to varying interpretations. Moreover, the

evidence did not establish that the Commission had any official

policy regarding whether the age restriction or weight classes

contained in the ISKA Overview were minimum health and safety

standards . As such, the Commission's rule, under the facts of

this case, fails to put individuals on notice as to the minimal

health and safety standards required by the Commission.

Moreover, the evidence did not demonstrate that the Overview's

a ge restriction was a health or safety standard. Given these

facts, Petitioner has not established by clear and convincing

eviden ce that Respondent violated r ule 61K1 - 1.0031, or section

548.006(4), 548. 071(1), or 548.071(4), Florida Statutes, by

allowing m inors to compete in MMA matches. Therefore, Count I of

the Administrative complaint should be dismissed.

4 6 . Count II of the A dministrative Complaint involved

alleged violations of Respondent's original rules regarding

weight classifications of fighters. However, the clear evidence

demonstrated that the Respondent had amended its rules and

submitted them to the Commission. Such rule amendments did not

have to be approved by the Commission since the Commission has no

statutory authority to approve such a mendments. Further, the

evidence showed that the Birge - Grooms fight complied with

Respondent's amended weight rules. Moreover, as with the ISKA

age restriction, the ISKA modifiable weight classes were not

shown to be minimum health and safety standards w ithin the ISKA

Overview. Given these facts, Petitioner failed to establish by

clear and convincing evidence that Respondent violated r ule 61K1 -

1.0031(1)(c), or sections 548.006(4), 548.071(1 ), or 548.071(4),

Florida Statutes , and Count II of the A dministr ative Complaint

should be dismissed.

4 7 . Count III of the Administrative C omplaint involved the

allegation that Respondent engaged in unethical or unprofessional

conduct by mislead ing American Legion Post #75 into signing a

letter that incorrectly stated the American Legion was the sole

sponsor of RespondentÓs May 6, 2011, amateur event. However, the

evidence did not establish that Respondent issued or composed the

American Legion letter. Additionally, there was no evidence that

Respondent engaged in any unprofessional or unethical conduct in

relation to this letter. Given these facts, Petitioner failed to

establish by clear and convincing evidence that Respondent

violated section 548.071(4), Florida Statutes . Therefore, Count

III of the Administrative Complaint should be dismissed.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Department of Business and

Professional Regulation, State Boxing Commission enter a final

order finding Respondent no t guilty of violati ng Florida

Administrative Code R ule 61K1 - 1.0031(1)(c), sections 548.006(4),

548.071(1), or 548.071(4), Florida Statutes , and, and dismiss the

Administrative Complaint .

DONE AND ENTERED this 2 0th day of June , 2013 , in

Tallahassee, Leon Co unty, Florida.

S

DIANE CLEAVINGER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah. state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 2 0th day of June , 2013 .

ENDNOTE S

1 / The original Administrative Compl a int was voluntarily

dismissed prior to he aring by the Petitioner in DOAH Case No. 11 -

5102 due to significant inaccuracies in its allegations which

were based on investigative reports of the same matches by the

same investigator involved in this action. Jurisdiction was

relinquished to the Petiti oner in case No. 11 - 5102.

2 / There appear to be two statutory possibilities within c hapter

548 that might be the intended statutory reference in rule 61K1 -

1.0031(4)(a), s ections 548.041 or 548.071. Section 548.041

relates to qualifications for licensur e of professional

" participants ." These qualifications, especially as to

restrictions regarding age (under 18), could possibly be what the

Commission intended to incorporate in the rule. However, the

more likely statutory candidate is section 578.071. T hat statute

relates to licensure discipline in general and also could

possibly be what the Commission intended to incorporate in the

rule.

3 / Although the Administrative Complaint is not clear as to which

licenses it is seeking to discipline, RespondentÓ s licenses for

boxing and kickboxing are not involved in the violations involved

in this Administrative Complaint since such allegations related

to MMA matches. Further the complaint seeks discipline only as

to ÐRespondentÓs license,Ñ in the singular form . As such,

RespondentÓs licenses related to boxing and kickboxing could only

be involved in this action vicariously.

COPIES FURNISHED:

Melissa Posey Furman, Esquire

Furman and Furman Attorneys, LLP

Post Office Box 610

Loxley, Alabama 36551 - 0610

James Michael Sawyer, Esquire

Law Office of DeCarlis and Sawyer

Suite C

5000 Northwest 27th Court

Gainesville, Florida 32606

William Gautier Kitchen, Esquire

Department of Business

and Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32 399 - 2202

Thomas Molloy, Executive Director

Florida State Boxing Commission

Department of Business

and Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399 - 2202

J. Layne Smith, Gen eral Co u nsel

Department of Business

and Profess ional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399 - 2202

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recom mended Order should be filed with the agency that

will issue the Final Order in this case.