15-004353RP West Flagler Associates, Ltd. 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.

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

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SECOND CHANCE JAI - ALAI, LLC,

Petitioner,

and

RB JAI ALAI, LLC,

Intervenor,

vs. Case No. 15 - 4352RP

DEPARTMENT OF BUSINESS AND

PROFESSIONAL REGULATION,

DIVISION OF PARI - MUTUEL

WAGERING,

Respondent.

_______________________________/

WEST FLAGLER ASSOCIATES, LTD.,

Petitioner,

vs. Case No. 15 - 4353RP

DEPARTMENT OF BUSINESS AND

PROFESSIONAL REGULATION,

DIVISION OF PARI - MUTUEL

WAGERING,

Respondent.

_______________________________/

FINAL ORDER

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

Judge of the Division of Administrative Hearings (DOAH),

conducted the final hearing in Tallahassee, Florida.

APPEARANCES

For Petitioner s : John M. Lockwood, Esquire

Kala Shankle, Esquire

The Lockwood Law Firm

106 East College Avenue, Suite 810

Tallahassee, Florida 32301

For Intervenor: Michael D. Jones, Esquire

Michael D. Jones & Associates, P.A.

361 South Central Avenue

Oviedo, Florida 32765

For Respondent: Caitlin R. Mawn, Esquire

Louis Trombetta, Esquire

D epartment of Business and

Professional Regulation

Division of Pari - Mutuel Wagering

1940 North Monroe Street, Suite 40

Tallahassee, Florida 32399 - 2202

STATEMENT OF THE ISSUE

T he issue is whether Proposed Flor ida Administrative Code

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

legislative authority, pursuant to sections 120.52(8) and

120.56(1)(a), Florida Statutes.

PRELIMINARY STATEMENT

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

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

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

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

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

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

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

Among other things, the petitions allege that proposed

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

delegated legislative authority because , in violation of

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

rulemaking authority in adopting this rule and, in violation of

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

contravenes the law implemented. The petitions request

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

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

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

Intervenor filed a Motion to Interven e in DOAH C ase

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

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

issued an Order G ranting Motion to Intervene.

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

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

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

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

Administrative Law Judge explained at the final hearing, time

constraints prevented the issuance of a ruling on the motion

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

Administrative Law Judge, the parties substantially relied o n

these filings as their proposed final orders, although, as

permitted by the Administrative Law Judge, Petitioners and

Intervenor filed supplemental arguments on November 23, 2015.

Intervenor's counsel was unable to attend the final hearing

due to medic al reasons. Without objection, the Administrative

Law Judge provided Intervenor addit ional time to present evidence

establishing that Intervenor is substantially affected by the

proposed rules. Intervenor filed an affidavit of its general

manager on Nove mber 20, 2015.

The parties did not order a transcript. At the final

hearing, the parties presented legal argument in the place of

testimony .

FINDING S OF FACT

1. Pursuant to chapter 550, Florida Statutes, Petitioner

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

County, and Petitioner WFA owns and operates a greyhound permit

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

Petitioner WFA also indirectly owns a summer jai alai permit at

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

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

facility in Broward County. Pursuant to chapter 550, Intervenor

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

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

Intervenor are regulated by the proposed rules that they

challenge in these cases .

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

Jai alai games must be conducted on a

three - walled court meeting the following

requi rements:

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

long and at least 35 feet in height;

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

least 35 feet in width and height;

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

(d) All courts must have sufficient

overh e ad coverage to ensure for the

operation of scheduled performances.

(e) All courts must have a live viewing

area for games.

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

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

least eight different players or teams."

4. The rulemaking authority cited for the Court Rule and

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

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

is sections 550.0251, 550 .105, and 550.70.

CONCLUSIONS OF LAW

5 . DOAH has jurisdiction over the subject matter because

Petition er s and Intervenor are substantially affected by the

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

Fla. Stat .

6 . Section 120.56(1) authorizes a substantially affected

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

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

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

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

proving by a preponderance of the evidence that the proposed rule

is not an invalid exercise of delegated legislative authority as

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

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

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

discuss these provisions because no reasonable interpretation of

these provisions could lead to a different result.

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

invalid exercise of delegated legislative authority if:

(b) The agency has exceeded its grant of

rulemaking authority, citation to which is

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

(c) The rule enlarges, modifies, or

contravenes the specific provisions of law

implemented, citation to which i s required

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

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 or interpret

the specific 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 arb itrary

and capricious or is within the agencyÓs

class of powers and duties, nor shall an

agency have the authority to implement

statutory provisions setting forth general

legislative intent or policy. Statutory

language granting rulemaking authority or

ge nerally describing the powers and

functions of an agency shall be construed to

extend no further than implementing or

interpreting the specific powers and duties

conferred by the enabling statute.

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

of the enabling statute being carried out or interpreted by an

agency through rulemaking. " Section 120.52(17) defines

"rulemaking authority" as "statutory language that explicitly

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

8. Section 550.0251 provides:

The division shall administer this chapter

and regulate the pari - mutuel industry under

this chapter and the rules adopted pursuant

thereto, and:

(1) The division shall make an annual

report to the Governor showing its own

actions, receipts derived under the

provisions of this chapter, the practical

effects of the application of this chapter,

and any suggestions it may approve for the

more effectual accomplishments of the

purposes of this chapter.

(2) The division shall r equire an oath on

application documents as required by rule,

which oath must state that the information

contained in the document is true and

complete.

(3) The division shall adopt reasonable

rules for the control, supervision, and

direction of all appli cants, permittees, and

licensees and for the holding, conducting,

and operating of all racetracks, race meets,

and races held in this state. Such rules

must be uniform in their application and

effect, and the duty of exercising this

control and power is m ade mandatory upon the

division.

(4) The division may take testimony

concerning any matter within its

jurisdiction and issue summons and subpoenas

for any witness and subpoenas duces tecum in

connection with any matter within the

jurisdiction of the divi sion under its seal

and signed by the director.

(5) The division may adopt rules

establishing procedures for testing

occupational licenseholders officiating at

or participating in any race or game at any

pari - mutuel facility under the jurisdiction

of the division for a controlled substance

or alcohol and may prescribe procedural

matters not in conflict with

s. 120.80(4)(a).

(6) In addition to the power to exclude

certain persons from any pari - mutuel

facility in this state, the division may

exclude a ny p erson from any and all

pari - mutuel facilities in this state for

conduct that would constitute, if the person

were a licensee, a violation of this chapter

or the rules of the division. The division

may exclude from any pari - mutuel facility

within this stat e any person who has been

ejected from a pari - mutuel facility in this

state or who has been excluded from any

pari - mutuel facility in another state by the

governmental department, agency, commission,

or authority exercising regulatory

jurisdiction over par i - mutuel facilities in

such other state. The division may

authorize any person who has been ejected or

excluded from pari - mutuel facilities in this

state or another state to attend the pari -

mutuel facilities in this state upon a

finding that the attendanc e of such person

at pari - mutuel facilities would not be

adverse to the public interest or to the

integrity of the sport or industry; however,

this subsection shall not be construed to

abrogate the common - law right of a pari -

mutuel permitholder to exclude a bsolutely a

patron in this state.

(7) The division may oversee the making of,

and distribution from, all pari - mutuel

pools.

(8) The department may collect taxes and

require compliance with reporting

requirements for financial information as

authorized by this chapter. In addition,

the secretary of the department may require

permitholders conducting pari - mutuel

operations within the state to remit taxes,

including fees, by electronic funds transfer

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

more in th e prior reporting year.

(9) The division may conduct investigations

in enforcing this chapter, except that all

information obtained pursuant to an

investigation by the division for an alleged

violation of this chapter or rules of the

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

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

Constitution until an administrative

complaint is issued or the investigation is

closed or ceases to be active. This

subsection does not prohibit the division

from providing such information to any l aw

enforcement agency or to any other

regulatory agency. For the purposes of this

subsection, an investigation is considered

to be active while it is being conducted

with reasonable dispatch and with a

reasonable, good faith belief that it could

lead to a n administrative, civil, or

criminal action by the division or another

administrative or law enforcement agency.

Except for active criminal intelligence or

criminal investigative information, as

defined in s. 119.011, and any other

information that, if dis closed, would

jeopardize the safety of an individual, all

information, records, and transcriptions

become public when the investigation is

closed or ceases to be active.

(10) The division may impose an

administrative fine for a violation under

this chapter of not more than $1,000 for

each count or separate offense, except as

otherwise provided in this chapter, and may

suspend or revoke a permit, a pari - mutuel

license, or an occupational license for a

violation under this chapter. All fines

imposed a nd collected under this subsection

must be deposited with the Chief Financial

Officer to the credit of the General Revenue

Fund.

(11) The division shall supervise and

regulate the welfare of racing animals at

pari - mutuel facilities.

(12) The division s hall 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.

(13) The division shall have the authority

to suspend a permitholderÓs permit or

license, if such permitholder is operating a

cardroom facility and such permitholderÓs

cardroom license has been suspended or

revoked pursuant to s. 849.086.

9. Section 550.105 provides:

(1) Each person connected with a racetrack

or jai alai fronton, as specified in

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

division an occupational license. All

moneys collected pursuant to this section

each fiscal year shall be deposited into the

Pari - mutuel Wager ing Trust Fund. Pursuant

to the rules adopted by the division, an

occupational license may be valid for a

period of up to 3 years for a fee that does

not exceed the full occupational license fee

for each of the years for which the license

is purchased. T he occupational license

shall be valid during its specified term at

any pari - mutuel facility.

(2)(a) The following licenses shall be

issued to persons or entities with access to

the backside, racing animals, jai alai

playersÓ room, jockeysÓ room, drivers Ó room,

totalisator room, the mutuels, or money

room, or to persons who, by virtue of the

position they hold, might be granted access

to these areas or to any other person or

entity in one of the following categories

and with fees not to exceed the followi ng

amounts for any 12 - month period:

1. Business licenses: any business such as

a vendor, contractual concessionaire,

contract kennel, business owning racing

animals, trust or estate, totalisator

company, stable name, or other fictitious

name: $50.

2. Professional occupational licenses:

professional persons with access to the

backside of a racetrack or playersÓ quarters

in jai alai such as trainers, officials,

veterinarians, doctors, nurses, EMTÓs,

jockeys and apprentices, drivers, jai alai

players, owners, trustees, or any management

or officer or director or shareholder or any

other professional - level person who might

have access to the jockeysÓ room, the

driversÓ room, the backside, racing animals,

kennel compound, or managers or supervisors

requi ring access to mutuels machines, the

money room, or totalisator equipment: $40.

3. General occupational licenses: general

employees with access to the jockeysÓ room,

the driversÓ room, racing animals, the

backside of a racetrack or playersÓ quarters

in jai alai, such as grooms, kennel helpers,

leadouts, pelota makers, cesta makers, or

ball boys, or a practitioner of any other

occupation who would have access to the

animals, the backside, or the kennel

compound, or who would provide the security

or maint enance of these areas, or mutuel

employees, totalisator employees, money - room

employees, or any employee with access to

mutuels machines, the money room, or

totalisator equipment or who would provide

the security or maintenance of these areas:

$10.

The individuals and entities that are

licensed under this paragraph require

heightened state scrutiny, including the

submission by the individual licensees or

persons associated with the entities

described in this chapter of fingerprints

for a Federal Bureau o f Investigation

criminal records check.

(b) The division shall adopt rules

pertaining to pari - mutuel occupational

licenses, licensing periods, and renewal

cycles.

(3) Certified public accountants and

attorneys licensed to practice in this state

shall not be required to hold an

occupational license under this section

while providing accounting or legal services

to a permitholder if the certified public

accountantÓs or attorneyÓs primary place of

employment is not on the permitholder

premises.

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

officiate in any way at any pari - mutuel

facility without first having secured a

license and paid the occupational license

fee.

(5)(a) The division may:

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

place conditions upon or restrictions on a

license of any person who has been refused a

license by any other state racing commission

or racing authority;

2. Deny, suspend, or place conditions on a

license of any person who is under

suspension or has unpaid fines in another

juri sdiction;

if the state racing commission or racing

authority of such other state or

jurisdiction extends to the division

reciprocal courtesy to maintain the

disciplinary control.

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

or declare ineligible any occu pational

license if the applicant for or holder

thereof has violated the provisions of this

chapter or the rules of the division

governing the conduct of persons connected

with racetracks and frontons. In addition,

the division may deny, suspend, revoke, or

declare ineligible any occupational license

if the applicant for such license has been

convicted in this state, in any other state,

or under the laws of the United States of a

capital felony, a felony, or an offense in

any other state which would be a f elony

under the laws of this state involving

arson; trafficking in, conspiracy to traffic

in, smuggling, importing, conspiracy to

smuggle or import, or delivery, sale, or

distribution of a controlled substance; or a

crime involving a lack of good moral

cha racter, or has had a pari - mutuel license

revoked by this state or any other

jurisdiction for an offense related to pari -

mutuel wagering.

(c) The division may deny, declare

ineligible, or revoke any occupational

license if the applicant for such license

h as been convicted of a felony or

misdemeanor in this state, in any other

state, or under the laws of the United

States, if such felony or misdemeanor is

related to gambling or bookmaking, as

contemplated in s. 849.25, or involves

cruelty to animals. If th e applicant

establishes that she or he is of good moral

character, that she or he has been

rehabilitated, and that the crime she or he

was convicted of is not related to pari -

mutuel wagering and is not a capital

offense, the restrictions excluding

offender s may be waived by the director of

the division.

(d) For purposes of this subsection, the

term ÐconvictedÑ means having been found

guilty, with or without adjudication of

guilt, as a result of a jury verdict,

nonjury trial, or entry of a plea of guilty

o r nolo contendere. However, the term

ÐconvictionÑ shall not be applied to a crime

committed prior to the effective date of

this subsection in a manner that would

invalidate any occupational license issued

prior to the effective date of this

subsection or subsequent renewal for any

person holding such a license.

(e) If an occupational license will expire

by division rule during the period of a

suspension the division intends to impose,

or if a license would have expired but for

pending administrative char ges and the

occupational licensee is found to be in

violation of any of the charges, the license

may be revoked and a time period of license

ineligibility may be declared. The division

may bring administrative charges against any

person not holding a curr ent license for

violations of statutes or rules which

occurred while such person held an

occupational license, and the division may

declare such person ineligible to hold a

license for a period of time. The division

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

each violation of the rules of the division

in addition to or in lieu of any other

penalty provided for in this section. In

addition to any other penalty provided by

law, the division may exclude from all pari -

mutuel facilities in this state, for a

p eriod not to exceed the period of

suspension, revocation, or ineligibility,

any person whose occupational license

application has been denied by the division,

who has been declared ineligible to hold an

occupational license, or whose occupational

license h as been suspended or revoked by the

division.

(f) The division may cancel any

occupational license that has been

voluntarily relinquished by the licensee.

(6) In order to promote the orderly

presentation of pari - mutuel meets authorized

in this chapter, the division may issue a

temporary occupational license. The

division shall adopt rules to implement this

subsection. However, no temporary

occupational li cense shall be valid for more

than 90 days, and no more than one temporary

license may be issued for any person in any

year.

(7) The division may deny, revoke, or

suspend any occupational license if the

applicant therefor or holder thereof

accumulates un paid obligations or defaults

in obligations, or issues drafts or checks

that are dishonored or for which payment is

refused without reasonable cause, if such

unpaid obligations, defaults, or dishonored

or refused drafts or checks directly relate

to the spo rt of jai alai or racing being

conducted at a pari - mutuel facility within

this state.

(8) The division may fine, or suspend or

revoke, or place conditions upon, the

license of any licensee who under oath

knowingly provides false information

regarding an investigation by the division.

(9) The tax imposed by this section is in

lieu of all license, excise, or occupational

taxes to the state or any county,

municipality, or other political

subdivision, except that, if a race meeting

or game is held or conduct ed in a

municipality, the municipality may assess

and collect an additional tax against any

person conducting live racing or games

within its corporate limits, which tax may

not exceed $150 per day for horseracing or

$50 per day for dogracing or jai alai.

Except as provided in this chapter, a

municipality may not assess or collect any

additional excise or revenue tax against any

person conducting race meetings within the

corporate limits of the municipality or

against any patron of any such person.

(10)(a ) Upon application for an

occupational license, the division may

require the applicantÓs full legal name; any

nickname, alias, or maiden name for the

applicant; name of the applicantÓs spouse;

the applicantÓs date of birth, residence

address, mailing addr ess, residence address

and business phone number, and social

security number; disclosure of any felony or

any conviction involving bookmaking, illegal

gambling, or cruelty to animals; disclosure

of any past or present enforcement or

actions by any racing o r gaming agency

against the applicant; and any information

the division determines is necessary to

establish the identity of the applicant or

to establish that the applicant is of good

moral character. Fingerprints shall be

taken in a manner approved by t he division

and then shall be submitted to the Federal

Bureau of Investigation, or to the

association of state officials regulating

pari - mutuel wagering pursuant to the Federal

Pari - mutuel Licensing Simplification Act of

1988. The cost of processing finge rprints

shall be borne by the applicant and paid to

the association of state officials

regulating pari - mutuel wagering from the

trust fund to which the processing fees are

deposited. The division, by rule, may

require additional information from

licensees which is reasonably necessary to

regulate the industry. The division may, by

rule, exempt certain occupations or groups

of persons from the fingerprinting

requirements.

(b) All fingerprints required by this

section that are submitted to the Department

of Law Enforcement shall be retained by the

Department of Law Enforcement and entered

into the statewide automated biometric

identification system as authorized by

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

all purposes and uses authorized for arrest

finge rprints entered into the statewide

automated biometric identification system

pursuant to s. 943.051.

(c) The Department of Law Enforcement shall

search all arrest fingerprints received

pursuant to s. 943.051 against the

fingerprints retained in the state wide

automated biometric identification system

under paragraph (b). Any arrest record that

is identified with the retained fingerprints

of a person subject to the criminal history

screening requirements of this section shall

be reported to the division. Each licensee

shall pay a fee to the division for the cost

of retention of the fingerprints and the

ongoing searches under this paragraph. The

division shall forward the payment to the

Department of Law Enforcement. The amount

of the fee to be imposed fo r performing

these searches and the procedures for the

retention of licensee fingerprints shall be

as established by rule of the Department of

Law Enforcement. The division shall inform

the Department of Law Enforcement of any

change in the license status of licensees

whose fingerprints are retained under

paragraph (b).

(d) The division shall request the

Department of Law Enforcement to forward

the fingerprints to the Federal Bureau of

Investigation for a national criminal

history records check at least once every

5 years following issuance of a license. If

the fingerprints of a person who is licensed

have not been retained by the Department of

Law Enforcement, the person must file a

complete set of fingerprints as provided in

paragraph (a). The divisi on shall collect

the fees for the cost of the national

criminal history records check under this

paragraph and forward the payment to the

Department of Law Enforcement. The cost of

processing fingerprints and conducting a

criminal history records check un der this

paragraph for a general occupational license

shall be borne by the applicant. The cost

of processing fingerprints and conducting a

criminal history records check under this

paragraph for a business or professional

occupational license shall be bo rne by the

person being checked. The Department of Law

Enforcement may invoice the division for the

fingerprints submitted each month. Under

penalty of perjury, each person who is

licensed or who is fingerprinted as required

by this section must agree to inform the

division within 48 hours if he or she is

convicted of or has entered a plea of guilty

or nolo contendere to any disqualifying

offense, regardless of adjudication.

10 . Section 550.70 provides:

(1) A chief court judge must be present for

each jai alai game at which pari - mutuel

wagering is authorized. Chief court judges

must be able to demonstrate extensive

knowledge of the rules and game of jai alai

and be able to meet the physical

requirements of the position. The decisions

of a chief court judge are final as to any

incident relating to the playing of a jai

alai game.

(2) The time within which the holder of a

ratified permit for jai alai or pelota has

to construct and complete a fronton may be

extended by the division for a period of 24

months after the date of the issuance of the

permit, anything to the contrary in any

statute notwithstanding.

(3) This chapter does not prohibit any

fronton, jai alai plant, or facility from

being used to co nduct amateur jai alai or

pelota contests or games during each fronton

season by any charitable, civic, or

nonprofit organization for the purpose of

conducting jai alai contests or games if

only players other than those usually used

in jai alai contests or games are permitted

to play and if adults and minors may

participate as players or spectators.

However, during such jai alai games or

contests, betting and gambling and the sale

or use of alcoholic beverages are

prohibited.

(4) A jai alai player shall not be required

to perform on more than 6 consecutive

calendar days.

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

wagering on points during a game; however,

the pari - mutuel machines must be locked upon

the start of the serving motion of each

serve for wager s on that game.

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

explicitly authorize or require Respondent to adopt the Court

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

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

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

provision falls within the meaning of the last sentence of the

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

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

construed as extending no further than implementing or

interpreting the specific powers and duties conferred by the

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

Respondent has exceeded its grant of rulemaking authority depends

on the determination of whether the Court Rule and the Roster

Rule enlarge, modify, or contravene the specific provisions of

the law implemented.

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

interpret the specific powers and duties granted by any enabling

statute. Not one of the many provisions within sections

550.025 1, 550.105, or 550.70 even mentions jai alai court s or

rosters. Section 550.0251 confers upon Respondent powers and

duties to process applications, conduct investigations, drug

testing officials who are occupational licensees, exclude certain

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

collect taxes and enforce reporting requir ements, impose

discipline on regulated persons who violate the law, supervise

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

regulate cardroom operations. Section 550.105 confers upon

Respondent powers and duties to process applications for

occupational licenses, grant occupational licenses, deposit

receipts in a specified trust fund, exempt certified public

accountants and licensed attorneys from occupational licensing,

and discipline occupational licenses. Section 550.70 confers

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

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

that the remaining provisions of section 550.70 confer powers or

duties upon Respondent, even though these provisions operate as

criteria direct ly applicable to jai alai operators, Respondent is

thus empowered to require that a competent, physically fit chief

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

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

prohibit a n operator from requiring a jai alai player from

performing on more than six consecutive calendar days, and to

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

serving motion of each serve for waters on that game.

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

statutory provisions any more than they contravene a statute

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

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

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

Rule required Respondent to enlarge and modify one or more of

these statutes to construe them as authority for a proposed rule

governing court dimensions and roster sizes.

ORDER

It is

ORDERED that :

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

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

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

2. The Administrative Law Judge reserves jurisdiction on

the request of Petitioner s and Intervenor for attorneys' fees

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

Administrative Law Judge will address this issue only if, within

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

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

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

Tallahassee, Leon County, Florida.

S

ROBERT E. MEALE

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 1 7 th day of December , 2015 .

COPIES FURNISHED:

Caitlin R. Mawn, Esquire

Louis Trombetta, Esquire

Department of Business and

Professional Regulation

Division of Pari - Mutuel Wagering

1940 North Monroe Street, Suite 40

Tallahassee, Florida 32399

(eServed)

John M. Lockwood, Esquire

Kala Shankle , Esquire

The Lockwood Law Firm

106 East College Avenue, Suite 810

Tallahassee, Florida 32301

(eServed)

Michael D. Jones, Esquire

Michael D . Jones & Associates, P.A.

361 South Central Avenue

Oviedo, Florida 32765

(eServed)

Jonathan Zachem, Director

Division of Pari - Mutuel Wagering

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399

(eServed)

William N. Spicola, General Counsel

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399

(eServed)

Ken Lawson, Secretary

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399

(eServed)

Ken Plante, Coordinator

Joint Administrative Procedures Committee

Room 680, Pepper Building

111 West Madison Street

Tallahassee, Florida 32399 - 1400

(eServed)

Ernest Reddick, Chief

Department of State

R. A. Gray Building

500 South Bronough Street

Tallahassee, Florida 32399 - 0250

(eSe rved)

Alexandra Nam

Department of State

R. A. Gray Building

500 South Bronough Street

Tallahassee, Florida 32399 - 0250

(eServed)

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 the original

notice of administrative appeal with the agency clerk of the

Division of Admi nistrative Hearings within 30 days of rendition

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

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

of the District Court of Appeal in the appellate district where

the agency maintains its headquarters or where a party resides or

as otherwise provided by law.