20-005233RU Daytona Beach Kennel Club, Inc. vs. Department Of Business And Professional Regulation, Division Of Pari-Mutuel Wagering Status: Closed DOAH Final Order on Friday, January 8, 2021.

Summary: Petitioner failed to prove that "Respondent's Notice of Intent to Approve" Intervenor's relocation constituted an unadopted rule in violation of section 120.54, Florida Statutes.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

D AYTONA B EACH K ENNEL C LUB , I NC . ,

Petitioner ,

vs. Case No. 20 - 5233RU

D EPARTMENT OF B USINESS A ND

P ROFESSIONAL R EGULATION , D IVISION OF

P ARI - M UTUEL W AGERING ,

Respondent,

and

B AYARD R ACEWAYS , I NC . D / B / A S T . J OHNS

G REYHOUND P ARK ,

Intervenor .

/

S UMMARY F INAL O RDER OF D ISMISSAL

This cause comes before the undersigned on the Motion to Dismiss, or in

the Alternative , M otion for Final Summary Order, filed by Respondent,

Department of Business and Professional Regulation, Division of Pari - Mutuel

Wagering (ÑDivisionÒ); and the Motion for Summary Final Order filed by

Intervenor, Bayard Raceways, Inc. (ÑBayardÒ) (together, Ñ the MotionsÒ).

S TATEMENT O F T HE C ASE

The issue to be determined i s whether statements contained, or otherwise

incorporated, in the DivisionÔs Notice of Intent to approve BayardÔs Notice of

Relocation (ÑDivisionÔs NoticeÒ) constitute unadopted rules in vi olation of

s ection 120.56(4), Florida Statutes (2020). 1

P RELIMINARY S TATEMENT

On December 2, 2020, Petitioner, Daytona Beach Kennel Club, Inc.

(ÑPetitionerÒ), filed a Petition for Administrative Determination of the

Invalidity of Agency Statement as Unpro mulgated Rule (ÑPetitionÒ) with the

Division of Administrative Hearings (ÑDOAHÒ). The case was assigned to the

undersigned, who held a scheduling conference on December 9, 2020, and

scheduled the final hearing for January 27 and 28, 2021. 2

The Division fi led its Motion on December 11, 2020, and the undersigned

conducted a telephonic hearing on the DivisionÔs Motion on December 22,

2020. The undersigned reserved ruling on the DivisionÔs Motion until after

IntervenorÔs Motion was heard. Intervenor filed its Motion on December 22,

2020, and the undersigned conducted a hearing via Zoom Conference on

IntervenorÔs Motion on December 30, 2020.

F INDINGS O F F ACT

The following relevant facts are undisputed:

1 . The Division is the arm of the Department of Business an d Professional

Regulation with the duty and responsibility to permit and regulate pari -

mutuel wagering facilities throughout the state. §§ 550.002(7) and 550.01215,

Fla. Stat.

2 . Petitioner is a pari - mutuel permittee that owns and operate s the

Daytona Beac h Racing and Card Club in Volusia County, located at

1 Unless otherwise noted, all references to the Florida Statutes are to the 2020 version, which

was in effect when the Petition was filed.

2 Petitioner waived the requirement in section 120.56(1)(c ) that the final hearing be

conducted within 30 days after assignment of the case.

960 South Williamson Boulevard in Daytona Beach, Florida (ÑPetitionerÔs

facilityÒ).

3 . Intervenor is a pari - mutuel permittee doing business as St. Johns

Greyhound Park in St. Johns County, at a leased fa cility located at

6322 Racetrack Road , St. Johns, Florida (ÑBayardÔs facilityÒ), approximately

75 miles north of PetitionerÔs facility.

4 . On July 8, 2020, Bayard filed with the Division a ÑNotice of RelocationÒ

of BayardÔs facility to an eight - acre parcel in St. Augustine, Florida, which it

is under contract to purchase.

5 . BayardÔs Notice of Relocation was filed pursuant to section

550.054(14)(b), Florida Statutes, which reads, in pertinent part, as follows:

The holder of a permit converted pursuant to th is

subsection or any holder of a permit to conduct

greyhound racing located in a county in which it is

the only permit issued pursuant to this section who

operated at a leased facility pursuant to s. 550.475

may move the location for which the permit has

b een issued to another location within a 30 - mile

radius of the location fixed in the permit issued in

that county, provided the move does not cross the

county boundary and such location is approved

under the zoning regulations of the county or

municipality in which the permit is located, and

upon such relocation may use the permit for the

conduct of pari - mutuel wagering and the operation

of a cardroom.

6 . On September 11, 2020, the Division issued its Notice regarding

BayardÔs relocation. Finding that Bayar d had satisfied all the criteria for

relocation pursuant to section 550.045(14)(b), the Division approved the

relocation of BayardÔs permit to 2493 State Road 207 in St. Augustine,

St. Johns County, Florida.

7 . On December 2, 2020, Petitioner filed the Pet ition challenging the

Notice as an unadopted rule in violation of section 120.56(4).

8 . The Petition alleges, in pertinent part, as follows:

10. As part of the [Notice], the Division included a

statement summarizing its application of the

§ 550.054(14)(b) relocation factors, yet failed to set

forth any analysis of the conditions for relocation of

greyhound permits set forth in § 550.0555(2). Based

on this incomplete analysis of BayardÔs Notice of

Relocation, the Division approved BayardÔs request

to reloca te.

12. Consequently, Petitioner is entitled to request a

hearing challenging the DivisionÔs agency

statement interpreting the applicability of

§ 550.054(14)(b), and lack of applicability of

§ 550.0555(2), in the [Notice] as an unpromulgated

rule.

21. Wh en analyzing whether to approve BayardÔs

request to relocate [BayardÔs facility], the Division

reviewed the factors listed in § 550.054(14)(b), but

wholly disregarded the factors listed in

§ 550.0555(2). In other words, the Division

determined, that a requ est, Ñpursuant to

§ 550.054(14)(b)Ò need not satisfy the requirements

of § 550.0555(2), despite the fact that such an

interpretation finds no support in the relevant

statutes themselves. This interpretation of law

represents an Ñagency statement of general

applicability that implements, interprets or

prescribes law or policy[.]Ò £ 120.52(16), Fla. Stat.

Since the Division did not properly adopt this

interpretation as a rule, this means it is an invalid

unpromulgated rule that cannot support agency

action.

9 . The crux of PetitionerÔs argument is that the Notice reflects an

unwritten policy of the Division to apply only the factors in section

550.054(14)(b) to applications to relocate which are filed Ñpursuant to that

section,Ò and not apply the factors in section 550.0555(2). 3

10 . The Notice does not cite, analyze, or otherwise refer to, section

550.0555.

C ONCLUSIONS OF L AW

11 . DOAH has jurisdiction over this action, and the parties thereto,

pursuant to section 120.56.

12 . ÑA summary final order shall be rendered if the administrative law

judge determines from the pleadings, depositions, answers to interrogatories,

and admissions on file, together with affidavits, if any, that no genuine issue

as to any material fact exists and that the moving party is ent itled as a

matter of law to the entry of a final order.Ò £ 120.57(1)(h), Fla. Stat. This

Ñstandard for issuing a summary final order generally mirrors the standard

for granting summary judgment under the Florida Rules of Civil Procedure.Ò

Castiello v. Stat ewide Nominating CommÔn for Judges of Comp. Claims ,

3 Section 550.0555(2) reads, in pertinent part, as follows:

(2) Any holder of a valid outstanding perm it for greyhound

dogracing in a county in which there is only on e dogracing

permit issued È is authorized, without the necessity of an

additional county referendum required under s. 550.0651, to

move the location for which the permit has been issued to

ano ther location within a 30 - mile radiuas of the location fixed

in the permit issued in the county, provided the move does not

cross the county boundary, that such relocation is approved

under the zoning regulations of the county or municipality in

which the permit is to be located as a planned development

use, consistent with the comprehensive plan, and that such

move is approved by the department after it is determined at

a proceeding pursuant to chapter 120 in the county affected

that the move is necessary to ensure the revenue - producing

capability of the permittee without deteriorating the revenue -

producing capability of any other pari - mutuel permittee

within 50 miles; the distance shall be measured on a straight

line from the nearest property line of one r acing plant or jai

alai fronton to the nearest property line of the other.

Case No. 17 - 0477RU, at ¶ 4 (Fla. DOAH Jan. 10, 2018) (granting a motion for

summary final order).

13 . Where, as here, the basic facts of the case Ñare clear and undisputedÒ

and Ñonly a question of law [must] be determined,Ò entry of a summary final

order is appropriate Ð just as entry of summary judgment would be. See

Duprey v. United Servs. Auto. AssÔn , 254 So. 2d 57, 58 (Fla. 1st DCA 1971).

14 . Section 120.52(16) defines a rule as follows :

Ñ Rule Ò means each agency statement of general

applicability that implements, interprets, or

prescribes law or policy or describes the procedure

or practice requirements of an agency and includes

any form which imposes any requirement or solicits

any information not sp ecifically required by statute

or by an existing rule. The term also includes the

amendment or repeal of a rule.

15 . Section 120.52(20) provides that an ÑÓ[u]nadopted ruleÔ means an

agency statement that meets the definition of the term Órule,Ô but that h as not

been adopted pursuant to the requirements of s. 120.54.Ò

16 . Section 120.54(1)(a) provides that Ñ[r]ulemaking is not a matter of

agency discretion. Each agency statement defined as a rule by s. 120.52 shall

be adopted by the rulemaking procedure pro vided by this section as soon as

feasible and practicable.Ò

17 . The requirement for agency rulemaking, codified in secti on 120.54(1),

prevents an administrative agency from relying on general policies that are

not tested in the rulemaking process, but it does not apply to every kind of

statement an agency may make. See McDonald v. DepÔt of Banking & Fin. ,

346 So. 2d 569, 581 (Fla. 1st DCA 1977) (stating that rulemaking

requirements were never intended to Ñencompass virtually any utterance by

an agencyÒ), s uperseded by statute on other grounds , § 120.54(1)(a), Fla. Stat.

(Supp. 1996), as recognized in DepÔ t. of High . Saf . & Motor Veh . v. Schluter ,

705 So. 2d 81 (Fla. 1st DCA 1997). Rulemaking is required only for an agency

statement that is the equivalent of a rule.

18 . An agencyÔs application of the law to a particular set of facts is not

itself a rule. See Amerisure Mut. Ins. Co. v. Fla. DepÔt of Fin. Servs., Div. of

WorkersÔ Comp. , 156 So. 3d 520, 531 (Fla. 1st D CA 2015) (concluding that the

agency did no t rely on an unadopted rule, but Ñsimply applied the governing

statute to the informationÒ reported by the relevant entity), superseded by

state constitutional amendment on other grounds , art. V, § 21, Fla. Const., as

recognized in Lee MemÔl Health Sys. Gu lf Coast Med. Ctr. v. Ag . for Health

Care Admin. , 272 So. 3d 431, 437 (Fla. 1st DCA 2019); see also

§ 120.57(1)(e)1., Fla. Stat. (expressly authorizing Ñapplication of . . .

applicable provisions of law to the factsÒ).

19 . Accordingly, where an agency sta tement analyzes existing law, as it

applies to a particular set of circumstances, the statement is not itself a rule

and is not subject to the rulemaking process. Envt l . Trust v. State, DepÔt of

Envt l . Prot. , 714 So. 2d 493, 498 (Fla. 1st DCA 1998). To con clude otherwise

would effectively require an agency to adopt a rule for every possible

circumstance that may arise. Instead, Ñan agency is free to simply apply a

statute to facts È without engaging in rulemaking.Ò Office of Ins. Reg. v.

Guarantee Trust Lif e Ins. Co. , Case No. 11 - 1150 at ¶ 75 (Fla. DOAH Mar. 16,

2012 ; Fla. OIR June 28, 2012) .

20 . As the First District Court of Appeal explained:

An agency statement explaining how an existing

rule of general applicability will be applied in a

particular set of facts is not itself a rule. If that

were true, the agency would be forced to adopt a

rule for every possible variation on a theme, and

private entities could continuously attack the

government for its failure to have a rule that

precisely addresses the facts at issue. Instead,

these matters are left for the adjudication process

under section 120.57, Florida Statutes.

Envt l. Trust , 714 So. 2d at 498. Here, the statement s contained in the

DivisionÔs Notice simply apply section 550.045(14)(b) to the facts set forth in

BayardÔs Notice of Relocation and conclude that, based on those facts, Bayard

has met the statutory criteria. The Notice does not contain any statement of

general applicability which implements, interprets, or prescribes law or

policy. Contra ry to PetitionerÔs assertion, the DivisionÔs Notice does not

ascribe to section 550.054(14)(b) any interpretation which is not apparent on

its face; nor does it ascribe any meaning to section 550.0555(2).

21 . A ny error in an agencyÔs application of the law to the particular facts

may be remedied through the adjudicatory process provided in section

120.57 . 4

C ONCLUSION

Based on the foregoing Findings of Fact and Conclusions of Law, the

Motions are Granted because the DivisionÔs Notice does not constitute an

unpromulgated rule in violation of section 120.56(4). PetitionerÔs Petition is

D ISMISSED with prejudice.

D ONE A ND O RDERED this 8 th day of January , 2021 , in Tallahassee, Leon

County, Florida.

S

S UZANNE V AN W YK

Administra tive 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

4 Petitioner has filed a challenge to the Division Ôs Notice pursuant to section 120.57, which,

according to the parties, has been scheduled for an informal hearing, pursuant to sect ion

120.57(2), as there are no material facts in dispute.

Filed with the Clerk of the

Division of Administrative Hearings

th is 8 th day of January , 2021 .

C OPIES F URNISHED :

David Axelman, General Counsel

Office of the General Counsel

Department of Business

and Professional Regulation

2601 Blairstone Road

Tallahassee, Florida 32399

(eServed)

Virginia Cambre Dailey, Esquire

Panza, Maurer & Maynard, P.A.

Suite 200

201 East Park Avenue

Tallahassee, Florida 32301

(eServed)

Johnny P. ElHachem, Esquire

Department of Business

and Professional Regulation

2601 Blair Stone Road

Tallahassee, Florida 32399

(eServed)

Eduardo S. Lo mbard, Esquire

Radey Law Firm, P.A.

Suite 200

301 South Bronough Street

Tallahassee, Florida 32301

(eServed)

Angela D. Miles, Esquire

Radey Thomas Yon & Clark, P.A.

Suite 200

301 South Bronough Street

Tallahassee, Florida 32301

(eServed)

Angelina M. G onzalez, Esquire

Panza , Maurer and Maynard , P.A.

Suite 905

2400 E ast Commercial B oulevard

Fort Lauderdale, Florida 33308

(eServed)

Benjamin P. Bean, Esquire

Panza , Maurer & Maynard, P.A.

Suite 905

2400 East Commercial Boulevard

Fort Lauderdale, Florida 33308

(eServed)

Louis Trombetta, Director

Department of Business and

Professional Regulation

Division of Pari - Mutuel Wagering

2601 Blair Stone Road

Tallahassee, Florida 32399 - 2202

(eServed)

Halsey Beshears, Secretary

Department of Business and

Pro fessional Regulation

2601 Blair Stone Road

Tallahassee, Florida 32399 - 2202

(eServed)

Ken Plante, Coordinator

Joint Administrative Procedure Committee

Room 680, Pepper Building

111 West Madison Street

Tallahassee, Florida 32399 - 1400

(eServed)

Ernest Red dick, Program Administrator

Anya Grosenbaugh

Florida Administrative Code & Register

Department of State

R.A. Gray Building

500 South Bronough Street

Tallahassee, Florida 32399 - 0250

(eServed)

N OTICE O F R IGHT T O J UDICIAL R EVIEW

A party who is adversely affe cted 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 administrativ e appeal with the

agency clerk of the Division of Administrative 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 d istrict c ourt of

a ppeal in the appellate district where the agency maintains its headquarters

or where a party resides or as otherwise provided by law.