15-004352RP Second Chance Jai-Alai, Llc vs. Department Of Business And Professional Regulation, Division Of Pari-Mutuel Wagering
 Status: Closed
Settled and/or Dismissed prior to entry of RO/FO on Thursday, February 18, 2016.


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Summary: Proposed rule is invalid exercise of delegated legislative authority for lack of specific grant of rulemaking authority and enlarging and modifying law implemented.

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8SECOND CHANCE JAI - ALAI, LLC,

14Petitioner,

15and

16RB JAI ALAI, LLC,

20Intervenor,

21vs. Case No. 15 - 4352RP

27DEPARTMENT OF BUSINESS AND

31PROFESSIONAL REGULATION,

33DIVISION OF PARI - MUTUEL

38WAGERING,

39Respondent.

40_______________________________/

41WEST FLAGLER ASSOCIATES, LTD.,

45Petitioner,

46vs. Case No. 15 - 4353RP

52DEPARTMENT OF BUSINESS AND

56PROFESSIONAL REGULATION,

58DIVISION OF PARI - MUTUEL

63WAGERING,

64Respondent.

65_______________________________/

66FINAL ORDER

68On November 6, 2015 , Robert E. Meale, Administrative Law

77Judge of the Division of Administrative Hearings (DOAH),

85conducted the final hearing in Tallahassee, Florida.

92APPEARANCES

93For Petitioner s : John M. Lockwood, Esquire

101Kala Shankle, Esquire

104The Lockwood Law Firm

108106 East College Avenue, Suite 810

114Tallahassee, Florida 32301

117For Intervenor: Michael D. Jones, Esquire

123Michael D. Jones & Associates, P.A.

129361 South Central Avenue

133Oviedo, Florida 32765

136For Respondent: Caitlin R. Mawn, Esquire

142Louis Trombetta, Esquire

145D epartment of Business and

150Professional Regulation

152Division of Pari - Mutuel Wagering

1581940 North Monroe Street, Suite 40

164Tallahassee, Florida 32399 - 2202

169STATEMENT OF THE ISSUE

173T he issue is whether Proposed Flor ida Administrative Code

183R ule 61D - 2.02 6(4) and (6) is an inva lid exercise of delegated

198legislative authority, pursuant to sections 120.52(8) and

205120.56(1)(a), Florida Statutes.

208PRELIMINARY STATEMENT

210On July 30 , 2015, Petitioner Second Chance Jai Alai,

219LLC (Second Chance) , filed a Petition Challenging Validity of

228Rule 61D - 2.026(6), Florida Administrative Code. This petition

237commenced DOAH Case No. 15 - 4352RP. On the same date, Petitioner

249West Flagler Associates, Ltd. (WFA) , filed a Petition Challenging

258Validity of Rule 61D - 2.026(4), Florida Administrative Code. T his

269petition commenced DOAH C ase NO. 15 - 4353RP.

278Among other things, the petitions allege that proposed

286rule 61D - 2.026(4) and (6) is an invalid exercise of

297delegated legislative authority because , in violation of

304section 120.52(8)(b), Respondent is exc eeding its grant of

313rulemaking authority in adopting this rule and, in violation of

323section 120.52(8)(c), the proposed rule enlarges, modifies, or

331contravenes the law implemented. The petitions request

338attorneys' fees and costs under section 120.595(2).

345O n August 11, 2015, the Admi nistrative Law Judge issued

356an O rder consolidating the two cases. On August 14, 2015,

367Intervenor filed a Motion to Interven e in DOAH C ase

378No. 15 - 4352RP. The motion adopts the petitio n of Petitioner

390Second Chance. On the same date, the Administrative Law Judge

400issued an Order G ranting Motion to Intervene.

408On October 22, 2015, Petitioners filed a Motion for Summary

418Final Order. On October 28, 2015, the parties filed a Joint

429Prehearing Stipulation. On October 29, 2015, Resp o ndent filed a

440response to the motion for summary final o rder. As the

451Administrative Law Judge explained at the final hearing, time

460constraints prevented the issuance of a ruling on the motion

470prior to final hearing. However, at the invitation of the

480Administrative Law Judge, the parties substantially relied o n

489these filings as their proposed final orders, although, as

498permitted by the Administrative Law Judge, Petitioners and

506Intervenor filed supplemental arguments on November 23, 2015.

514Intervenor's counsel was unable to attend the final hearing

523due to medic al reasons. Without objection, the Administrative

532Law Judge provided Intervenor addit ional time to present evidence

542establishing that Intervenor is substantially affected by the

550proposed rules. Intervenor filed an affidavit of its general

559manager on Nove mber 20, 2015.

565The parties did not order a transcript. At the final

575hearing, the parties presented legal argument in the place of

585testimony .

587FINDING S OF FACT

5911. Pursuant to chapter 550, Florida Statutes, Petitioner

599Second Chance operates jai alai ga mes at its facility in Marion

611County, and Petitioner WFA owns and operates a greyhound permit

621and summer jai alai permit at its facility in Miami - Dade County.

634Petitioner WFA also indirectly owns a summer jai alai permit at

645the Miami Jai Alai in Miami - Dade County and owns partial

657interests in two jai alai permits operated at the Dania Jai Alai

669facility in Broward County. Pursuant to chapter 550, Intervenor

678owns and operates a jai alai permit at its facility in Semin ole

691County, where it conducts live jai alai permits. Petitioners and

701Intervenor are regulated by the proposed rules that they

710challenge in these cases .

7152. Proposed rule 61D - 2.026(4) (the Court Rule) provides:

725Jai alai games must be conducted on a

733three - walled court meeting the following

740requi rements:

742(a) The side wall must be at least 175 feet

752long and at least 35 feet in height;

760(b) The front wall and back wall must be at

770least 35 feet in width and height;

777(c) The front wall must be made of granite.

786(d) All courts must have sufficient

792overh e ad coverage to ensure for the

800operation of scheduled performances.

804(e) All courts must have a live viewing

812area for games.

8153. Proposed rule 61D - 2.026(6) (the Roster Rule) provides:

"825Jai Alai permit holders must utilize a rotational system of at

836least eight different players or teams."

8424. The rulemaking authority cited for the Court Rule and

852the Roster Rule is sections 550.0251 and 550.105(3) and (10)(a).

862The law implemented cited for the Court Rule and the Roster Rule

874is sections 550.0251, 550 .105, and 550.70.

881CONCLUSIONS OF LAW

8845 . DOAH has jurisdiction over the subject matter because

894Petition er s and Intervenor are substantially affected by the

904proposed rules . §§ 120.56(1)(a) and (e), 120.569, and 120.57 ,

914Fla. Stat .

9176 . Section 120.56(1) authorizes a substantially affected

925person to seek the invalidation of a rule on the ground that it

938is an invalid exercise of delegated legislat ive authority. In a

949challenge of a proposed rule, Petitioner s and Intervenor have the

960burden of "going forward," and Respondent has the burden of

970proving by a preponderance of the evidence that the proposed rule

981is not an invalid exercise of delegated legislative authority as

991to the objections raised. § 120.56(2)(a) , Fla. Stat . In this

1002proceeding, the pro posed rule is not presumed to be valid or

1014invalid. § 120.56(2)(c) , Fla. Stat . It is unnecessa ry to

1025discuss these provisions because no reasonable interpretation of

1033these provisions could lead to a different result.

10417 . Section 120.52(8)(b) and (c ) pro vides that a rule is an

1055invalid exercise of delegated legislative authority if:

1062(b) The agency has exceeded its grant of

1070rulemaking authority, citation to which is

1076required by s. 120.54(3)(a)1.; [and]

1081(c) The rule enlarges, modifies, or

1087contravenes the specific provisions of law

1093implemented, citation to which i s required

1100by s. 120.54(3)(a)1[.]

1103A grant of rulemaking authority is necessary

1110but not sufficient to allow an agency to

1118adopt a rule; a specific law to be

1126implemented is also required. An agency may

1133adopt only rules that implement or interpret

1140the specific powers and duties granted by

1147the enabling statute. No agency shall have

1154authority to adopt a rule only because it is

1163reasonably related to the purpose of the

1170enabling legislation and is not arb itrary

1177and capricious or is within the agencyÓs

1184class of powers and duties, nor shall an

1192agency have the authority to implement

1198statutory provisions setting forth general

1203legislative intent or policy. Statutory

1208language granting rulemaking authority or

1213ge nerally describing the powers and

1219functions of an agency shall be construed to

1227extend no further than implementing or

1233interpreting the specific powers and duties

1239conferred by the enabling statute.

1244Section 120.52(9) defines the "law implemented" as the "language

1253of the enabling statute being carried out or interpreted by an

1264agency through rulemaking. " Section 120.52(17) defines

"1270rulemaking authority" as "statutory language that explicitly

1277authorizes or requires an agency to adopt . . . any . . . 'rule.' "

12928. Section 550.0251 provides:

1296The division shall administer this chapter

1302and regulate the pari - mutuel industry under

1310this chapter and the rules adopted pursuant

1317thereto, and:

1319(1) The division shall make an annual

1326report to the Governor showing its own

1333actions, receipts derived under the

1338provisions of this chapter, the practical

1344effects of the application of this chapter,

1351and any suggestions it may approve for the

1359more effectual accomplishments of the

1364purposes of this chapter.

1368(2) The division shall r equire an oath on

1377application documents as required by rule,

1383which oath must state that the information

1390contained in the document is true and

1397complete.

1398(3) The division shall adopt reasonable

1404rules for the control, supervision, and

1410direction of all appli cants, permittees, and

1417licensees and for the holding, conducting,

1423and operating of all racetracks, race meets,

1430and races held in this state. Such rules

1438must be uniform in their application and

1445effect, and the duty of exercising this

1452control and power is m ade mandatory upon the

1461division.

1462(4) The division may take testimony

1468concerning any matter within its

1473jurisdiction and issue summons and subpoenas

1479for any witness and subpoenas duces tecum in

1487connection with any matter within the

1493jurisdiction of the divi sion under its seal

1501and signed by the director.

1506(5) The division may adopt rules

1512establishing procedures for testing

1516occupational licenseholders officiating at

1520or participating in any race or game at any

1529pari - mutuel facility under the jurisdiction

1536of the division for a controlled substance

1543or alcohol and may prescribe procedural

1549matters not in conflict with

1554s. 120.80(4)(a).

1556(6) In addition to the power to exclude

1564certain persons from any pari - mutuel

1571facility in this state, the division may

1578exclude a ny p erson from any and all

1587pari - mutuel facilities in this state for

1595conduct that would constitute, if the person

1602were a licensee, a violation of this chapter

1610or the rules of the division. The division

1618may exclude from any pari - mutuel facility

1626within this stat e any person who has been

1635ejected from a pari - mutuel facility in this

1644state or who has been excluded from any

1652pari - mutuel facility in another state by the

1661governmental department, agency, commission,

1665or authority exercising regulatory

1669jurisdiction over par i - mutuel facilities in

1677such other state. The division may

1683authorize any person who has been ejected or

1691excluded from pari - mutuel facilities in this

1699state or another state to attend the pari -

1708mutuel facilities in this state upon a

1715finding that the attendanc e of such person

1723at pari - mutuel facilities would not be

1731adverse to the public interest or to the

1739integrity of the sport or industry; however,

1746this subsection shall not be construed to

1753abrogate the common - law right of a pari -

1763mutuel permitholder to exclude a bsolutely a

1770patron in this state.

1774(7) The division may oversee the making of,

1782and distribution from, all pari - mutuel

1789pools.

1790(8) The department may collect taxes and

1797require compliance with reporting

1801requirements for financial information as

1806authorized by this chapter. In addition,

1812the secretary of the department may require

1819permitholders conducting pari - mutuel

1824operations within the state to remit taxes,

1831including fees, by electronic funds transfer

1837if the taxes and fees amounted to $50,000 or

1847more in th e prior reporting year.

1854(9) The division may conduct investigations

1860in enforcing this chapter, except that all

1867information obtained pursuant to an

1872investigation by the division for an alleged

1879violation of this chapter or rules of the

1887division is exempt f rom s. 119.07(1) and

1895from s. 24(a), Art. I of the State

1903Constitution until an administrative

1907complaint is issued or the investigation is

1914closed or ceases to be active. This

1921subsection does not prohibit the division

1927from providing such information to any l aw

1935enforcement agency or to any other

1941regulatory agency. For the purposes of this

1948subsection, an investigation is considered

1953to be active while it is being conducted

1961with reasonable dispatch and with a

1967reasonable, good faith belief that it could

1974lead to a n administrative, civil, or

1981criminal action by the division or another

1988administrative or law enforcement agency.

1993Except for active criminal intelligence or

1999criminal investigative information, as

2003defined in s. 119.011, and any other

2010information that, if dis closed, would

2016jeopardize the safety of an individual, all

2023information, records, and transcriptions

2027become public when the investigation is

2033closed or ceases to be active.

2039(10) The division may impose an

2045administrative fine for a violation under

2051this chapter of not more than $1,000 for

2060each count or separate offense, except as

2067otherwise provided in this chapter, and may

2074suspend or revoke a permit, a pari - mutuel

2083license, or an occupational license for a

2090violation under this chapter. All fines

2096imposed a nd collected under this subsection

2103must be deposited with the Chief Financial

2110Officer to the credit of the General Revenue

2118Fund.

2119(11) The division shall supervise and

2125regulate the welfare of racing animals at

2132pari - mutuel facilities.

2136(12) The division s hall have full authority

2144and power to make, adopt, amend, or repeal

2152rules relating to cardroom operations, to

2158enforce and to carry out the provisions of

2166s. 849.086, and to regulate the authorized

2173cardroom activities in the state.

2178(13) The division shall have the authority

2185to suspend a permitholderÓs permit or

2191license, if such permitholder is operating a

2198cardroom facility and such permitholderÓs

2203cardroom license has been suspended or

2209revoked pursuant to s. 849.086.

22149. Section 550.105 provides:

2218(1) Each person connected with a racetrack

2225or jai alai fronton, as specified in

2232paragraph (2)(a), shall purchase from the

2238division an occupational license. All

2243moneys collected pursuant to this section

2249each fiscal year shall be deposited into the

2257Pari - mutuel Wager ing Trust Fund. Pursuant

2265to the rules adopted by the division, an

2273occupational license may be valid for a

2280period of up to 3 years for a fee that does

2291not exceed the full occupational license fee

2298for each of the years for which the license

2307is purchased. T he occupational license

2313shall be valid during its specified term at

2321any pari - mutuel facility.

2326(2)(a) The following licenses shall be

2332issued to persons or entities with access to

2340the backside, racing animals, jai alai

2346playersÓ room, jockeysÓ room, drivers Ó room,

2353totalisator room, the mutuels, or money

2359room, or to persons who, by virtue of the

2368position they hold, might be granted access

2375to these areas or to any other person or

2384entity in one of the following categories

2391and with fees not to exceed the followi ng

2400amounts for any 12 - month period:

24071. Business licenses: any business such as

2414a vendor, contractual concessionaire,

2418contract kennel, business owning racing

2423animals, trust or estate, totalisator

2428company, stable name, or other fictitious

2434name: $50.

24362. Professional occupational licenses:

2440professional persons with access to the

2446backside of a racetrack or playersÓ quarters

2453in jai alai such as trainers, officials,

2460veterinarians, doctors, nurses, EMTÓs,

2464jockeys and apprentices, drivers, jai alai

2470players, owners, trustees, or any management

2476or officer or director or shareholder or any

2484other professional - level person who might

2491have access to the jockeysÓ room, the

2498driversÓ room, the backside, racing animals,

2504kennel compound, or managers or supervisors

2510requi ring access to mutuels machines, the

2517money room, or totalisator equipment: $40.

25233. General occupational licenses: general

2528employees with access to the jockeysÓ room,

2535the driversÓ room, racing animals, the

2541backside of a racetrack or playersÓ quarters

2548in jai alai, such as grooms, kennel helpers,

2556leadouts, pelota makers, cesta makers, or

2562ball boys, or a practitioner of any other

2570occupation who would have access to the

2577animals, the backside, or the kennel

2583compound, or who would provide the security

2590or maint enance of these areas, or mutuel

2598employees, totalisator employees, money - room

2604employees, or any employee with access to

2611mutuels machines, the money room, or

2617totalisator equipment or who would provide

2623the security or maintenance of these areas:

2630$10.

2631The individuals and entities that are

2637licensed under this paragraph require

2642heightened state scrutiny, including the

2647submission by the individual licensees or

2653persons associated with the entities

2658described in this chapter of fingerprints

2664for a Federal Bureau o f Investigation

2671criminal records check.

2674(b) The division shall adopt rules

2680pertaining to pari - mutuel occupational

2686licenses, licensing periods, and renewal

2691cycles.

2692(3) Certified public accountants and

2697attorneys licensed to practice in this state

2704shall not be required to hold an

2711occupational license under this section

2716while providing accounting or legal services

2722to a permitholder if the certified public

2729accountantÓs or attorneyÓs primary place of

2735employment is not on the permitholder

2741premises.

2742(4) It i s unlawful to take part in or

2752officiate in any way at any pari - mutuel

2761facility without first having secured a

2767license and paid the occupational license

2773fee.

2774(5)(a) The division may:

27781. Deny a license to or revoke, suspend, or

2787place conditions upon or restrictions on a

2794license of any person who has been refused a

2803license by any other state racing commission

2810or racing authority;

28132. Deny, suspend, or place conditions on a

2821license of any person who is under

2828suspension or has unpaid fines in another

2835juri sdiction;

2837if the state racing commission or racing

2844authority of such other state or

2850jurisdiction extends to the division

2855reciprocal courtesy to maintain the

2860disciplinary control.

2862(b) The division may deny, suspend, revoke,

2869or declare ineligible any occu pational

2875license if the applicant for or holder

2882thereof has violated the provisions of this

2889chapter or the rules of the division

2896governing the conduct of persons connected

2902with racetracks and frontons. In addition,

2908the division may deny, suspend, revoke, or

2915declare ineligible any occupational license

2920if the applicant for such license has been

2928convicted in this state, in any other state,

2936or under the laws of the United States of a

2946capital felony, a felony, or an offense in

2954any other state which would be a f elony

2963under the laws of this state involving

2970arson; trafficking in, conspiracy to traffic

2976in, smuggling, importing, conspiracy to

2981smuggle or import, or delivery, sale, or

2988distribution of a controlled substance; or a

2995crime involving a lack of good moral

3002cha racter, or has had a pari - mutuel license

3012revoked by this state or any other

3019jurisdiction for an offense related to pari -

3027mutuel wagering.

3029(c) The division may deny, declare

3035ineligible, or revoke any occupational

3040license if the applicant for such license

3047h as been convicted of a felony or

3055misdemeanor in this state, in any other

3062state, or under the laws of the United

3070States, if such felony or misdemeanor is

3077related to gambling or bookmaking, as

3083contemplated in s. 849.25, or involves

3089cruelty to animals. If th e applicant

3096establishes that she or he is of good moral

3105character, that she or he has been

3112rehabilitated, and that the crime she or he

3120was convicted of is not related to pari -

3129mutuel wagering and is not a capital

3136offense, the restrictions excluding

3140offender s may be waived by the director of

3149the division.

3151(d) For purposes of this subsection, the

3158term ÐconvictedÑ means having been found

3164guilty, with or without adjudication of

3170guilt, as a result of a jury verdict,

3178nonjury trial, or entry of a plea of guilty

3187o r nolo contendere. However, the term

3194ÐconvictionÑ shall not be applied to a crime

3202committed prior to the effective date of

3209this subsection in a manner that would

3216invalidate any occupational license issued

3221prior to the effective date of this

3228subsection or subsequent renewal for any

3234person holding such a license.

3239(e) If an occupational license will expire

3246by division rule during the period of a

3254suspension the division intends to impose,

3260or if a license would have expired but for

3269pending administrative char ges and the

3275occupational licensee is found to be in

3282violation of any of the charges, the license

3290may be revoked and a time period of license

3299ineligibility may be declared. The division

3305may bring administrative charges against any

3311person not holding a curr ent license for

3319violations of statutes or rules which

3325occurred while such person held an

3331occupational license, and the division may

3337declare such person ineligible to hold a

3344license for a period of time. The division

3352may impose a civil fine of up to $1,000 for

3363each violation of the rules of the division

3371in addition to or in lieu of any other

3380penalty provided for in this section. In

3387addition to any other penalty provided by

3394law, the division may exclude from all pari -

3403mutuel facilities in this state, for a

3410p eriod not to exceed the period of

3418suspension, revocation, or ineligibility,

3422any person whose occupational license

3427application has been denied by the division,

3434who has been declared ineligible to hold an

3442occupational license, or whose occupational

3447license h as been suspended or revoked by the

3456division.

3457(f) The division may cancel any

3463occupational license that has been

3468voluntarily relinquished by the licensee.

3473(6) In order to promote the orderly

3480presentation of pari - mutuel meets authorized

3487in this chapter, the division may issue a

3495temporary occupational license. The

3499division shall adopt rules to implement this

3506subsection. However, no temporary

3510occupational li cense shall be valid for more

3518than 90 days, and no more than one temporary

3527license may be issued for any person in any

3536year.

3537(7) The division may deny, revoke, or

3544suspend any occupational license if the

3550applicant therefor or holder thereof

3555accumulates un paid obligations or defaults

3561in obligations, or issues drafts or checks

3568that are dishonored or for which payment is

3576refused without reasonable cause, if such

3582unpaid obligations, defaults, or dishonored

3587or refused drafts or checks directly relate

3594to the spo rt of jai alai or racing being

3604conducted at a pari - mutuel facility within

3612this state.

3614(8) The division may fine, or suspend or

3622revoke, or place conditions upon, the

3628license of any licensee who under oath

3635knowingly provides false information

3639regarding an investigation by the division.

3645(9) The tax imposed by this section is in

3654lieu of all license, excise, or occupational

3661taxes to the state or any county,

3668municipality, or other political

3672subdivision, except that, if a race meeting

3679or game is held or conduct ed in a

3688municipality, the municipality may assess

3693and collect an additional tax against any

3700person conducting live racing or games

3706within its corporate limits, which tax may

3713not exceed $150 per day for horseracing or

3721$50 per day for dogracing or jai alai.

3729Except as provided in this chapter, a

3736municipality may not assess or collect any

3743additional excise or revenue tax against any

3750person conducting race meetings within the

3756corporate limits of the municipality or

3762against any patron of any such person.

3769(10)(a ) Upon application for an

3775occupational license, the division may

3780require the applicantÓs full legal name; any

3787nickname, alias, or maiden name for the

3794applicant; name of the applicantÓs spouse;

3800the applicantÓs date of birth, residence

3806address, mailing addr ess, residence address

3812and business phone number, and social

3818security number; disclosure of any felony or

3825any conviction involving bookmaking, illegal

3830gambling, or cruelty to animals; disclosure

3836of any past or present enforcement or

3843actions by any racing o r gaming agency

3851against the applicant; and any information

3857the division determines is necessary to

3863establish the identity of the applicant or

3870to establish that the applicant is of good

3878moral character. Fingerprints shall be

3883taken in a manner approved by t he division

3892and then shall be submitted to the Federal

3900Bureau of Investigation, or to the

3906association of state officials regulating

3911pari - mutuel wagering pursuant to the Federal

3919Pari - mutuel Licensing Simplification Act of

39261988. The cost of processing finge rprints

3933shall be borne by the applicant and paid to

3942the association of state officials

3947regulating pari - mutuel wagering from the

3954trust fund to which the processing fees are

3962deposited. The division, by rule, may

3968require additional information from

3972licensees which is reasonably necessary to

3978regulate the industry. The division may, by

3985rule, exempt certain occupations or groups

3991of persons from the fingerprinting

3996requirements.

3997(b) All fingerprints required by this

4003section that are submitted to the Department

4010of Law Enforcement shall be retained by the

4018Department of Law Enforcement and entered

4024into the statewide automated biometric

4029identification system as authorized by

4034s. 943.05(2)(b) and shall be available for

4041all purposes and uses authorized for arrest

4048finge rprints entered into the statewide

4054automated biometric identification system

4058pursuant to s. 943.051.

4062(c) The Department of Law Enforcement shall

4069search all arrest fingerprints received

4074pursuant to s. 943.051 against the

4080fingerprints retained in the state wide

4086automated biometric identification system

4090under paragraph (b). Any arrest record that

4097is identified with the retained fingerprints

4103of a person subject to the criminal history

4111screening requirements of this section shall

4117be reported to the division. Each licensee

4124shall pay a fee to the division for the cost

4134of retention of the fingerprints and the

4141ongoing searches under this paragraph. The

4147division shall forward the payment to the

4154Department of Law Enforcement. The amount

4160of the fee to be imposed fo r performing

4169these searches and the procedures for the

4176retention of licensee fingerprints shall be

4182as established by rule of the Department of

4190Law Enforcement. The division shall inform

4196the Department of Law Enforcement of any

4203change in the license status of licensees

4210whose fingerprints are retained under

4215paragraph (b).

4217(d) The division shall request the

4223Department of Law Enforcement to forward

4229the fingerprints to the Federal Bureau of

4236Investigation for a national criminal

4241history records check at least once every

42485 years following issuance of a license. If

4256the fingerprints of a person who is licensed

4264have not been retained by the Department of

4272Law Enforcement, the person must file a

4279complete set of fingerprints as provided in

4286paragraph (a). The divisi on shall collect

4293the fees for the cost of the national

4301criminal history records check under this

4307paragraph and forward the payment to the

4314Department of Law Enforcement. The cost of

4321processing fingerprints and conducting a

4326criminal history records check un der this

4333paragraph for a general occupational license

4339shall be borne by the applicant. The cost

4347of processing fingerprints and conducting a

4353criminal history records check under this

4359paragraph for a business or professional

4365occupational license shall be bo rne by the

4373person being checked. The Department of Law

4380Enforcement may invoice the division for the

4387fingerprints submitted each month. Under

4392penalty of perjury, each person who is

4399licensed or who is fingerprinted as required

4406by this section must agree to inform the

4414division within 48 hours if he or she is

4423convicted of or has entered a plea of guilty

4432or nolo contendere to any disqualifying

4438offense, regardless of adjudication.

444210 . Section 550.70 provides:

4447(1) A chief court judge must be present for

4456each jai alai game at which pari - mutuel

4465wagering is authorized. Chief court judges

4471must be able to demonstrate extensive

4477knowledge of the rules and game of jai alai

4486and be able to meet the physical

4493requirements of the position. The decisions

4499of a chief court judge are final as to any

4509incident relating to the playing of a jai

4517alai game.

4519(2) The time within which the holder of a

4528ratified permit for jai alai or pelota has

4536to construct and complete a fronton may be

4544extended by the division for a period of 24

4553months after the date of the issuance of the

4562permit, anything to the contrary in any

4569statute notwithstanding.

4571(3) This chapter does not prohibit any

4578fronton, jai alai plant, or facility from

4585being used to co nduct amateur jai alai or

4594pelota contests or games during each fronton

4601season by any charitable, civic, or

4607nonprofit organization for the purpose of

4613conducting jai alai contests or games if

4620only players other than those usually used

4627in jai alai contests or games are permitted

4635to play and if adults and minors may

4643participate as players or spectators.

4648However, during such jai alai games or

4655contests, betting and gambling and the sale

4662or use of alcoholic beverages are

4668prohibited.

4669(4) A jai alai player shall not be required

4678to perform on more than 6 consecutive

4685calendar days.

4687(5) The provisions of s. 550.155(1) allow

4694wagering on points during a game; however,

4701the pari - mutuel machines must be locked upon

4710the start of the serving motion of each

4718serve for wager s on that game.

472511. Section s 550.025 1 (3) and 550.105(3) and (10)(a) do not

4737explicitly authorize or require Respondent to adopt the Court

4746Rule or the Roster Rule. Section 550.0251 (3) authorizes the

4756adoption of "reasonable rules for the control, supervision, and

4765direction of all applicants, permittees, and licensees." T his

4774provision falls within the meaning of the last sentence of the

4785flush - left language of section 120.52(8): it i s a statutory

4797grant of rulemaking authority of a general nature that is to be

4809construed as extending no further than implementing or

4817interpreting the specific powers and duties conferred by the

4826enabling statute. For this reason, the determination of wheth er

4836Respondent has exceeded its grant of rulemaking authority depends

4845on the determination of whether the Court Rule and the Roster

4856Rule enlarge, modify, or contravene the specific provisions of

4865the law implemented.

486812 . T he Court Rule and the Roster Rule do not implement or

4882interpret the specific powers and duties granted by any enabling

4892statute. Not one of the many provisions within sections

4901550.025 1, 550.105, or 550.70 even mentions jai alai court s or

4913rosters. Section 550.0251 confers upon Respondent powers and

4921duties to process applications, conduct investigations, drug

4928testing officials who are occupational licensees, exclude certain

4936persons from pari - mutuel facilities, oversee pari - mutuel pools,

4947collect taxes and enforce reporting requir ements, impose

4955discipline on regulated persons who violate the law, supervise

4964the welfare of racing animals at pari - mutuel facilities, and

4975regulate cardroom operations. Section 550.105 confers upon

4982Respondent powers and duties to process applications for

4990occupational licenses, grant occupational licenses, deposit

4996receipts in a specified trust fund, exempt certified public

5005accountants and licensed attorneys from occupational licensing,

5012and discipline occupational licenses. Section 550.70 confers

5019upon Respo ndent powers and duties to extend the time for a

5031permi t tee to complete the construction of a fronton. Assuming

5042that the remaining provisions of section 550.70 confer powers or

5052duties upon Respondent, even though these provisions operate as

5061criteria direct ly applicable to jai alai operators, Respondent is

5071thus empowered to require that a competent, physically fit chief

5081court judge be present for each jai alai game, to allow certain

5093persons to use a jai alai facility for certain jai alai games, to

5106prohibit a n operator from requiring a jai alai player from

5117performing on more than six consecutive calendar days, and to

5127ensure that pari - mutuel machines are locked on the start of the

5140serving motion of each serve for waters on that game.

515013. The Court Rule and Roster Rule do not contravene these

5161statutory provisions any more than they contravene a statute

5170governing the permitting of a power plant: the cited statutes do

5181not address court dimensions and roster sizes. Clearly, though,

5190the path from the cited statutes to the Court Rule and the Roster

5203Rule required Respondent to enlarge and modify one or more of

5214these statutes to construe them as authority for a proposed rule

5225governing court dimensions and roster sizes.

5231ORDER

5232It is

5234ORDERED that :

52371. Proposed Flor ida Administrative Code R ule 61D - 2.026(4)

5248and (6) is invalidated as an invalid exercise of delegated

5258legislative authority , pursuant to section 120.52(8)(b) and (c) .

52672. The Administrative Law Judge reserves jurisdiction on

5275the request of Petitioner s and Intervenor for attorneys' fees

5285and costs under sect ion 120.595(2 ) , Florida Statutes . The

5296Administrative Law Judge will address this issue only if, within

530630 days of the date of this final order, one of these parties

5319files with DOAH a pet ition for attorneys' fees and costs.

5330DONE AND ORDERED this 1 7 th day of December , 2015 , in

5342Tallahassee, Leon County, Florida.

5346S

5347ROBERT E. MEALE

5350Administrative Law Judge

5353Division of Administrative Hearings

5357The DeSoto Building

53601230 Apalachee Parkway

5363Tallahassee, Florida 32399 - 3060

5368(850) 488 - 9675

5372Fax Filing (850) 921 - 6847

5378www.doah.state.fl.us

5379Filed with the Clerk of the

5385Division of Administrative Hearings

5389this 1 7 th day of December , 2015 .

5398COPIES FURNISHED:

5400Caitlin R. Mawn, Esquire

5404Louis Trombetta, Esquire

5407Department of Business and

5411Professional Regulation

5413Division of Pari - Mutuel Wagering

54191940 North Monroe Street, Suite 40

5425Tallahassee, Florida 32399

5428(eServed)

5429John M. Lockwood, Esquire

5433Kala Shankle , Esquire

5436The Lockwood Law Firm

5440106 East College Avenue, Suite 810

5446Tallahassee, Florida 32301

5449(eServed)

5450Michael D. Jones, Esquire

5454Michael D . Jones & Associates, P.A.

5461361 South Central Avenue

5465Oviedo, Florida 32765

5468(eServed)

5469Jonathan Zachem, Director

5472Division of Pari - Mutuel Wagering

5478Department of Business and

5482Professional Regulation

5484Northwood Centre

54861940 North Monroe Street

5490Tallahassee, Florida 32399

5493(eServed)

5494William N. Spicola, General Counsel

5499Department of Business and

5503Professional Regulation

5505Northwood Centre

55071940 North Monroe Street

5511Tallahassee, Florida 32399

5514(eServed)

5515Ken Lawson, Secretary

5518Department of Business and

5522Professional Regulation

5524Northwood Centre

55261940 North Monroe Street

5530Tallahassee, Florida 32399

5533(eServed)

5534Ken Plante, Coordinator

5537Joint Administrative Procedures Committee

5541Room 680, Pepper Building

5545111 West Madison Street

5549Tallahassee, Florida 32399 - 1400

5554(eServed)

5555Ernest Reddick, Chief

5558Department of State

5561R. A. Gray Building

5565500 South Bronough Street

5569Tallahassee, Florida 32399 - 0250

5574(eSe rved)

5576Alexandra Nam

5578Department of State

5581R. A. Gray Building

5585500 South Bronough Street

5589Tallahassee, Florida 32399 - 0250

5594(eServed)

5595NOTICE OF RIGHT TO JUDICIAL REVIEW

5601A party who is adversely affected by this Final Order is entitled

5613to judicial review pursuant to section 120.68, Florida Statutes.

5622Review proceedings are governed by the Florida Rules of Appellate

5632Procedure. Such proceedings are commenced by filing the original

5641notice of administrative appeal with the agency clerk of the

5651Division of Admi nistrative Hearings within 30 days of rendition

5661of the order to be reviewed, and a copy of the notice,

5673accompanied by any filing fees prescribed by law, with the clerk

5684of the District Court of Appeal in the appellate district where

5695the agency maintains its headquarters or where a party resides or

5706as otherwise provided by law.

Select the PDF icon to view the document.
PDF
Date
Proceedings
PDF:
Date: 02/18/2016
Proceedings: Final Order. CASE CLOSED.
PDF:
Date: 02/17/2016
Proceedings: Stipulation for Order Awarding Attorneys' Fees and Dismissing Case filed.
PDF:
Date: 01/26/2016
Proceedings: Notice of Hearing (hearing set for February 18, 2016; 9:00 a.m.; Tallahassee, FL).
PDF:
Date: 01/19/2016
Proceedings: Order Reopening Files. CASE REOPENED.
PDF:
Date: 01/19/2016
Proceedings: Notice of Filing Affidavit of Attorney Fees of Michael D. Jones of Michael D. Jones & Associates, PA, filed.
PDF:
Date: 01/15/2016
Proceedings: Petitioners' Motion for Attorney Fees filed.
PDF:
Date: 12/17/2015
Proceedings: DOAH Final Order
PDF:
Date: 12/17/2015
Proceedings: Final Order (hearing held November 6, 2015). CASE CLOSED.
PDF:
Date: 11/30/2015
Proceedings: Notice of Scrivener's Error filed.
PDF:
Date: 11/23/2015
Proceedings: Respondent's Final Argument/Supplement to Previous Filings filed.
PDF:
Date: 11/23/2015
Proceedings: Supplement to Petitioner's Motion for Summary Final Order filed.
PDF:
Date: 11/20/2015
Proceedings: Petitioner's Notice of Filing Affidavit of David Catina in Support of Standing of RB Jai Alai, LLC filed.
Date: 11/06/2015
Proceedings: CASE STATUS: Hearing Held.
PDF:
Date: 11/05/2015
Proceedings: Notice of Appearance (Louis Trombetta) (filed in Case No. 15-004353RP).
PDF:
Date: 11/05/2015
Proceedings: Notice of Appearance (Louis Trombetta) filed.
PDF:
Date: 10/29/2015
Proceedings: Respondent's Response to Petitioners' Motion for Summary Final Order and Request for Oral Argument filed.
PDF:
Date: 10/28/2015
Proceedings: Joint Prehearing Stipulation filed.
PDF:
Date: 10/22/2015
Proceedings: Petitioners' Motion for Summary Final Order filed.
PDF:
Date: 08/14/2015
Proceedings: Order Granting Motion to Intervene.
PDF:
Date: 08/14/2015
Proceedings: Motion to Intervene (filed by RB Jai Alai, LLC) filed.
PDF:
Date: 08/11/2015
Proceedings: Order of Pre-hearing Instructions.
PDF:
Date: 08/11/2015
Proceedings: Notice of Hearing (hearing set for November 6, 2015; 9:00 a.m.; Tallahassee, FL).
PDF:
Date: 08/11/2015
Proceedings: Joint Statement of Available Hearing Dates filed.
PDF:
Date: 08/11/2015
Proceedings: Order of Consolidation (DOAH Case Nos. 15-4352RP and 15-4353RP).
PDF:
Date: 08/10/2015
Proceedings: Notice of Transfer.
PDF:
Date: 08/03/2015
Proceedings: Respondent's Motion to Consolidate filed.
PDF:
Date: 07/31/2015
Proceedings: Notice of Appearance (Caitlin Mawn) filed.
PDF:
Date: 07/31/2015
Proceedings: Notice of Appearance (Jason Maine) filed.
PDF:
Date: 07/31/2015
Proceedings: Order of Assignment.
PDF:
Date: 07/31/2015
Proceedings: Rule Challenge transmittal letter to Ernest Reddick from Claudia Llado copying Ken Plante and the Agency General Counsel.
PDF:
Date: 07/30/2015
Proceedings: Petition Challenging Validity of Rule 61D-2.026(6), Florida Administrative Code filed.

Case Information

Judge:
ROBERT E. MEALE
Date Filed:
07/30/2015
Date Assignment:
08/10/2015
Last Docket Entry:
02/18/2016
Location:
Tallahassee, Florida
District:
Northern
Agency:
Department of Business and Professional Regulation
Suffix:
RP
 

Counsels

Related Florida Statute(s) (17):