97-002080RP
St. Petersburg Kennel Club, Inc., D/B/A Derby Lane vs.
Division Of Pari-Mutuel Wagering
Status: Closed
DOAH Final Order on Tuesday, August 19, 1997.
DOAH Final Order on Tuesday, August 19, 1997.
1STATE OF FLORIDA
4DIVISION OF ADMINISTRATIVE HEARINGS
8ST. PETERSBURG KENNEL CLUB, )
13)
14Petitioner, )
16)
17vs. )
19) Case No. 97-2080RP
23DEPARTMENT OF BUSINESS AND )
28PROFESSIONAL REGULATION, )
31DIVISION OF PARI-MUTUEL )
35WAGERING, )
37)
38Respondent. )
40______________________________)
41FINAL ORDER
43In lieu of a formal administrative hearing, this case came
53before J. Lawrence Johnston, Administrative Law Judge, Division
61of Administrative Hearings (DOAH), on proposed final orders based
70upon the evidentiary record created in DOAH Case Nos. 97-0031,
8097-0376, and 97-1667.
83APPEARANCES
84For Petitioner : Harold F. X. Purnell, Esquire
92Rutledge, Ecenia, Underwood, Purnell
96and Hoffman
98Post Office Box 551
102215 South Monroe Street, Suite 420
108Tallahassee, Florida 32302-0551
111For Respondent : Miriam S. Wilkinson, Esquire
118Department of Business and Professional
123Regulation
1241940 North Monroe Street
128Tallahassee, Florida 32399-1036
131STATEMENT OF THE ISSUE
135The issue in this case is whether proposed Florida
144Administrative Code Rule 61D-11.026 is valid.
150PRELIMINARY STATEMENT
152On April 30, 1997, the Petitioner, the St. Petersburg Kennel
162Club, Inc., d/b/a Derby Lane, filed a Petition for Administrative
172Determination of the Invalidity of Proposed Rule challenging
180proposed Florida Administrative Code Rule 61D-11.026. The
187parties waived the statutory 30-day deadline under Section
195120.56(1)(c), Florida Statutes ( Supp. 1996), and requested that
204final hearing be scheduled on June 25, 1997. Notice of Final
215Hearing was issued on May 20, 1997.
222On June 2, 1997, the Respondent, the Department of Business
232and Professional Regulation, Division of Pari-Mutuel Wagering
239(the Division), filed an agreed Motion for Judicial Notice of
249Prior Administrative Proceeding asking for official recognition
256of the evidence admitted at final hearing in DOAH Case Nos.
26797-0031, 97-0376, and 97-1667. An Order Taking Official
275Recognition was entered on June 3, 1997.
282On June 20, 1997, the parties filed a Joint Prehearing
292Stipulation and Joint Motion to File Proposed Recommended Orders
301in Lieu of Formal Hearing in 30 days. The Joint Stipulation
312added Excerpts from The New Complete Hoyle Revised , published
321December 1991, to the evidence.
326An Order Cancelling Final Hearing and Establishing PFO
334Deadline was entered on June 26, 1997.
341FINDINGS OF FACT
344Rule 61D-11.002(2)(a) and the Incipient Policy
3501. During the 1996 Session of the Florida Legislature,
359pari-mutuel permit holders were authorized, for the first time,
368to operate cardrooms at their facilities on days when live racing
379is being conducted, effective January 1, 1997. Only certain card
389games were authorized, and games have to be approved by the
400Respondent, the Department of Business and Professional
407Regulation, Division of Pari-Mutuel Wagering (the Division).
414Chapter 96-364, Laws of Florida (1996).
4202. When the Division first began implementing the new
429cardroom statute, it anticipated that it would be receiving
438requests for card games as they appeared in Hoyle's Modern
448Encyclopedia of Card Games , by Walter B. Gibson, published by
458Doubleday and Company, Inc., April 1974 1st Edition ( Hoyles ).
4693. Hoyles includes many games besides poker; in addition
478to a special section on poker, it includes special sections on
489pinochle and solitaire; the evidence is not clear as to the other
501kinds of card games in Hoyles .
5084. Initially, the Division promulgated Florida
514Administrative Code Rule 61D-11.002(2)(a ) which provides:
521(2)(a ) All card games in Hoyle's Modern Encyclopedia
530of Card Games, by Walter B. Gibson, published by
539Doubleday and Company, Inc., April 1974 1st Edition
547hereinafter ( Hoyle's) incorporated herein by reference,
554that are authorized by and played in a manner
563consistent with Section 849.085(2)(a) and Section
569849.086, Florida Statutes, and the rules promulgated
576thereunder, shall be approved by the division. All
584other card games shall be approved by the division if
594the type of card games and the rules of the card games,
606as specified in BPR Form 16-001, meet the requirements
615of Section 849.085(2)(a) and Section 849.086, Florida
622Statutes, and the rules promulgated thereunder.
6285. The Division soon noticed that it was receiving
637requests for the approval of games alleged to be poker, but
649which deviated from the standard features of poker. In November
6591996, the Division began to develop a policy for the review of
671such games and began to require card games to use standard poker
683card and hand ranking and afford players the opportunity to bluff
694after seeing their hands.
698Requests and Denials Prior to Proposed Rule
7056. On or about November 8, 1996, the Petitioner, the
715St. Petersburg Kennel Club, submitted a request for approval for
725Big Poker 21. The Division denied approval on December 3, 1996.
7367. On or about December 19, 1996, the Petitioner submitted
746a request for approval for Sure 2 Win. The Division denied
757approval on January 2, 1997.
7628. On or about January 23, 1997, the Petitioner submitted
772a request for approval for Florida Twenty-One. The Division
781denied approval on February 14, 1997.
7879. All three games are played in a non-banking manner.
797(The house is not a player in games played in a non-banking
809manner, a requirement for approval.) The Division initially
817simply advised the Petitioner that its proposed games were not
827authorized. Subsequently, in discovery depositions in this case,
835the Division advised the Petitioner more specifically, as
843follows : approval of Big Poker 21 was denied because Big Poker
85521 fails to adhere to standard poker-hand rankings and does not
866allow for the possibility of bluffing, calling or raising;
875approval of Florida Twenty-One was denied because Florida Twenty-
884One fails to adhere to standard poker-hand rankings; and approval
894of Sure 2 Win was denied because in the five-card portion of Sure
9072 Win, the players have no opportunity to wager or bluff after
919viewing the cards and simply win or lose on the hand dealt.
93110. The Division has approved 35 out of 39 card games
942submitted by cardroom operators. The four denied include Sure 2
952Win, Big Poker 21, Florida Twenty-One, and Pompano 22. Pompano
96222 is very similar to Florida Twenty-One.
96911. The card games, Hollywood 2-3 Flash and Hollywood 4-3
979Flash, were approved by the Division on January 10, 1997. The
990Petitioner contends that, under the Divisions incipient policy
998and proposed rule, these games should not have been approved
1008because they do not provide for bluffing. However, both afford
1018players the opportunity to check or bet after seeing their first
1029cards (the first two in 2-3 Flash or the first four in 4-3
1042Flash).
104312. The card game, Three-Card Stud, also was approved by
1053the Division on January 10, 1997 . The Petitioner contends that,
1064under the Divisions incipient policy and proposed rule, this
1073game should not have been approved because it does not follow the
1085standard poker hand rankings. However, the hand rankings are
1094consistent with the standard poker-hand-ranking system, just
1101adapted for a three-card hand.
1106The Proposed Rule
110913. Notice of a rule workshop regarding the definition of
1119poker was published in December 1996, and a workshop was held in
1131January, 1997.
113314. The Division distributed a hand-out on poker at the
1143January workshop, but the evidence is not clear as to the content
1155of the hand-out. It appears to have been a list of seven issues
1168for discussion, including : whether there have to be one or more
1180betting intervals in a poker game; whether the players of poker
1191have to be able to wager on the quality of his/her hand by either
1205folding, calling, passing, or raising; and whether a poker game
1215must use the standard poker hand rankings.
122215. On March 18, 1997, the Division proposed Florida
1231Administrative Code Rule 61D-11.026:
1235Poker is defined as a non-banking game played with
1244cards, comprised of two or more players who play for
1254wagers, and which shall contain the following elements:
1262(1) conformity to the traditional, standardized poker
1269hand ranking system where the value of the ranking is
1279determined by the relative probablity of drawing a
1287particular hand; (2) conformity to the traditional,
1294standardized poker card ranking system (e.g., K>Q>J>10
1301etc.); and (3) the opportunity to bluff, through at
1310least one betting round, after players have viewed
1318their cards. Poker does not include any game whose
1327object is to reach a certain accumulated number by
1336adding up the face value of the cards.
1344Specific Authority 849.085(2)(a),
1347849.086(2)(a) ,(4),(12), 550.0251(12) FS, Law
1353Implemented 849.086 FS. History-New.
1357Standard Poker
135916. Standard poker is a non-banking game played with cards
1369or tiles that generally include the following features : at least
1380part of the players hand is known only to the player and is
1393solely under the players control; there are two or more players;
1404there is a pot created by wagers which constitutes the prize for
1416winning; there is a standard ranking of hands which is not
1427arbitrary and which is based on the mathematical expectation or
1437difficulty of achieving a particular combination of cards; there
1446is a standard ranking of cards from lowest to highest; there is
1458opportunity for each player to bet on the cards which comprise
1469the players hand; and there are one or more betting rounds.
148017. The fundamental element that different iates poker from
1489all other forms of gambling is the bluff : the possibility that a
1502player can win the game with a hand that ranks lower than another
1515players.
151618. The game of poker is an American invention whose rules
1527have been fairly standardized for almost a century.
153519. There is no mention of poker in Hoyles 1776 text. The
1547rules of poker developed during the 19th century. The first
1557reference to rules for a game resembling poker is in Hoyles 1857
1569text. Although draw and stud poker did not exist in 1857, the
1581hand rankings were the same then as they are today, only without
1593the straight or straight flush. The straight was introduced into
1603the ranking system below the flush at the turn of this century.
161520. Draw poker and five-card stud developed during the
1624Civil War, although straight poker was clearly the most important
1634form of poker at that time. The ranking system that is in use
1647today was firmly established by 1885.
165321. The standard poker-hand rankings of today, given in
1662order from highest to lowest, are as follows : five of a kind
1675(possible only when wild cards are used), straight flush (royal
1685flush is highest), four of a kind, full house, flush, straight,
1696three of a kind, two pair, pair, high card.
170522. The standard poker-card rankings of today, in order
1714from highest to lowest, are as follows : A, K, Q, J, 10, 9, 8, 7,
17306, 5, 4, 3, 2, with the ace sometimes low instead of high.
1743Petitioners Expert
174523. On July 19, 1996, the Petitioners expert, Steven Fox,
1755submitted to the Division a set of suggested revisions to the
1766Divisions proposed cardroom rules. Fox stated that the games of
1776poker in Hoyles are inappropriate for commercial cardroom use
1785and that it was better for the State to develop its own generic
1798standard of poker: Attached are some of my own [generic
1808standard of poker] on commercial poker games and a generic
1818definition of poker for reference.
182324. As applied to commercial poker games, the features of
1833poker that Fox suggested the Division use as a guideline to
1844evaluate whether a game should be classified as poker include:
1854(a) usually played with cards; (b) cards are ranked from
1864designated lowest or worst to highest or best; (c) there is a
1876ranking system which assigns relative value to each players
1885combination of cards, where the ranking system is not arbitrary
1895and is based on the mathematical expectation for receiving each
1905combination; (d) each player can participate in the action based
1915upon cards solely under his control . . . and knowledge of other
1928players habits or styles; (e) at least some of the cards under a
1941players control are known only to him; (f) each player has the
1953opportunity to bet on the cards which comprise his hand and there
1965may be more than one betting round; and (g) players bet against
1977the relative holdings of other players.
198325. In his July 1996 materials, Fox suggested that the
1993Division consider the traditional poker ranking system of cards
2002from lowest or worst to highest or best, as follows: 2, 3, 4, 5,
20166, 7, 8, 9, 10, Jack, Queen, King, Ace. The Ace shall be
2029treated as a one in low poker and in low straight sequences (A,
20422, 3, 4, 5). Otherwise it will be assumed to be valued higher
2055than all the other cards in assuming standard 52 card deck.
2066This is the exact same card ranking system listed in Hoyles .
207826. In his July 1996 materials, Fox suggested that the
2088Division consider the traditional poker-ranking system of hands
2096in descending order of value as : five aces (includes the joker
2108when available), straight flush, four of a kind, full house,
2118flush, straight, three of a kind, two pair, one pair, no pair
2130(high card). This is the same hand-ranking system listed in
2140Hoyles .
214227. At final hearing in DOAH Case Nos. 97-0031, 97-0376,
2152and 97-1667 on April 11, 1997, Fox testified that it is
2163extremely difficult to pin down what exactly is poker; that
2173poker hand rankings are arbitrary and established by agreement of
2183the players, i.e. , whatever the players want; and that, because
2193of the $10 pot limitation, games in Florida lend themselves more
2204to home-style or showdown games. When questioned on cross-
2213examination about these apparent contradictions, Fox asserted
2220that his definition as submitted to the Division in July 1996,
2231was something that I used in more of the casino versions of
2243poker, and I use this as a suggestion so that people can
2255understand a casino version of poker.
226128. But, nowhere in Foxs July 1996 materials, does he
2271state, suggest, or infer that his definition of poker is a
2282casino version of poker or that his definition would be
2292inappropriate for use in Florida because of the $10 pot
2302limitation. To the contrary, it was Foxs desire that the
2312Division incorporate his suggested definition of poker into its
2321regulations. At the time he submitted his suggested definition
2330of poker to the Division in July 1996, Fox was fully aware of the
2344$10 pot limitation in Florida.
234929. Fox was paid by the Petitioner to provide expert
2359testimony on its behalf at the hearing on April 11, 1997. Fox
2371was not paid for his proposed revisions and definition of poker
2382submitted to the Division in July 1996.
2389Dealers Choice Games in Hoyles
239430. Included among the poker games described in Hoyles are
2404many dealers choice poker games. According to Hoyles , these
2413games run the gamut from mere variants of standard games to
2424those that are wild beyond belief. Some of these games
2434including Jacks High, Lalapalooza, Low Poker, One Card Poker,
2443Place Poker, Second Hand Low, Tens High, Two Card Poker, and
2454Zebra Pokervary from the standard poker-hand rankings. Others
2462including High Spade Split, Jacks High, Tens High, and Zebra
2472Pokervary from the standard poker-card rankings. Someincluding
2479Cold Hands, Cold Hands Poker with a Draw, Blind Poker, and Show
2491Down Pokerdo not afford players the opportunity to bluff after
2501seeing their hands.
250431. There also are other homestyle, dealers choice poker
2513games, not listed in Hoyles , which do not conform to the
2524Divisions definition of poker. These include 727 and 333, in
2534which the object is to obtain a certain numerical total by adding
2546the point values of cards.
2551The New Complete Hoyle Revised
255632. The New Complete Hoyle Revised was published in
2565December 1991. Excerpts are included in the evidence in this
2575proceeding. It appears that the excerpts begin on page 26 with a
2587section called Variations of Poker. The excerpts appear to
2596follow material on standard Poker which are not in evidence.
260633. The section called Variations of Poker begins with a
2616subsection called Optional Laws, which in turn seems to composed
2626of sections called Special Hands, Popular Wild Cards, Double-Ace
2635Flushes, Stripped Deck, and Royalties. The next subsection,
2643starting on page 28, is called Poker Variations. It states:
2653There is an indeterminate number of games based on
2662Poker, and many of these games have several different
2671names. Most of them were originally devised, or are
2680devised from time to time, to break the monotony of a
2691regular Poker game (or, at least, what seems to the
2701average player to be monotony.) The variations which
2709have proved most popular over a period of time are
2719described in the following pages.
2724In most of these games, the standard poker hands
2733as listed on page 6 have value in the showdown and
2744determine the winner. When any of the standard poker
2753hands are not counted, or when any of the optional
2763hands (page 26) are counted, that fact is noted in the
2774description of the variation. In some cases, each hand
2783in the showdown consists of fewer than five cards;
2792though a player be dealt as many as ten cards, he must
2804select his best five for the showdown.
2811The games described on pages 28 through 36 include some of the
2823games included in the Dealers Choice section of Hoyles . At the
2835same time, it also includes a game called Dealers Choice.
2845Under Dealers Choice, the New Complete Hoyle Revised states in
2855part:
2856In the usual informal Poker game, the dealer may choose
2866which form or variation of Poker will be played.
2875Sometimes he is not limited to forms of Poker, but may
2886select such games as Fan Tan, Red Dog, or any other
2897game suitable to the number of players at the table.
2907Also included are the games Red and Black and Up and Down the
2920River (or Put and Take). In Red and Black:
2929The rules follow Draw Poker except in the rank of the
2940cards. Instead of determining the winner by poker
2948hands, each player in the showdown counts the point
2957value of his hand. All red cards count plus, and all
2968black cards count minus; each ace counts 1 point, each
2978face card 10 points, and each other card its index
2988value. The hand with the highest plus total in the
2998showdown wins the pot; or the game is played high-low,
3008with the greatest plus hand dividing the pot with the
3018greatest minus (or, if there is no minus hand, with the
3029lowest plus).
303134. In Up and Down the River (or Put and Take):
3042Dealer gives each player five cards, face up, one at a
3053time. He then turns up five cards to the center, one
3064at a time, as put cards. As each card is turned,
3075each player having a card of the same rank in his hand
3087must put in the pot as many chips as the rank of the
3100cards, counting a king as 13, queen 12, jack 11, ace 1
3112and other cards their index numbers. If a player has
3122two or more cards in his hand of the rank turned, he
3134must put up individually for each. When the five put
3144cards have been turned, the dealer turns up five take
3154cards and this time each player takes from the pot the
3165number of chips equivalent to the rank of the care for
3176each card of similar rank in his hand.
3184* * *
3187This is played as a banking game, the dealer
3196taking any excess remaining in the pot and supplying
3205any deficiency; but there is no advantage to the
3214dealer.
3215Petitioners Proposed Poker Games
321935. The Petitioners proposed poker games called Big
3227Poker 21 and Florida Twenty-One do not conform to the standard
3238poker card ranking system. Face cards are all given exactly the
3249same rank or value; each is worth 10 points, while aces are worth
32621 or 11 points.
326636. The object of both Big Poker 21 and Florida Twenty-One
3277is to total 21 points, or as close to 21 points as possible, by
3291adding the point values of cards. Players accumulate cards by
3301drawing cards face up until a certain point value is reached,
3312whereupon they stand.
331537. Big Poker 21 and Florida Twenty-One both allow for an
3326automatic win if the players first two cards total 21 points.
3337An ace-king, ace-queen, ace-jack, and ace-10 each total 21 and
3347are automatic winners. There are no automatic wins in poker.
335738. Big Poker 21 and Florida Twenty-One both restrict the
3367players ability to draw cards. This restriction is based on the
3378point total. A player who accumulates 20 points is not allowed
3389to draw any more cards. The game of poker does not restrict a
3402players ability to draw cards simply because the player has
3412attained a particular hand.
341639. There is no possibility of bluffing in Big Poker 21
3427since players make their bets before they view their cards.
343740. Big Poker 21 and Florida Twenty-One are variations of
3447the game of Black Jack, or Twenty-One, as it is often called.
3461Black Jack developed in the 1850s and was often played in a non-
3474banking manner. It is still sometimes played today in a non-
3485banking manner.
348741. The Petitioners proposed poker game called Sure 2
3496Win includes a five-card hand, or showdown portion, which
3505violates the fundamental rule of poker that players have to be
3516able to make a bet after viewing their cards so that bluffing is
3529possible. All participants must participate in the showdown
3537portion. In the showdown portion of the game, the players
3547wager before viewing their cards, which are then turned up to
3558reveal the winning hand, with no further opportunity to bet.
356842. The winner of the showdown portion of Sure 2 Win wins
3580strictly by chance since the player has no control over the deal
3592of the cards, no opportunity to view the cards before making a
3604bet, no opportunity to bluff, no opportunity to draw cards in
3615order construct a higher ranked hand, and no control over the
3626outcome of the showdown portion.
363143. The player who wins in the showdown portion of the game
3643is not eligible to play the seven-card portion of the game.
3654Other players can decide whether to bet on the seven-card portion
3665of the game; however, that decision has absolutely no effect on
3676the outcome of the five-card portion of the game.
3685CONCLUSIONS OF LAW
368844. Under Section 120.56(2), Florida Statutes ( Supp.
36961996):
3697The [proposed rule challenge] petition shall state with
3705particularity the objections to the proposed rule and
3713the reasons that the proposed rule is an invalid
3722exercise of delegated legislative authority. The
3728agency then has the burden to prove that the proposed
3738rule is not an invalid exercise of delegated
3746legislative authority as to the objections raised.
375345. Section 120.52(8), Florida Statutes ( Supp. 1996 ),
3762provides:
"3763Invalid exercise of delegated legislative authority"
3769means action which goes beyond the powers, functions,
3777and duties delegated by the Legislature. A proposed or
3786existing rule is an invalid exercise of delegated
3794legislative authority if any one of the following
3802applies:
3803(a ) The agency has materially failed to follow the
3813applicable rulemaking procedures or requirements set
3819forth in this chapter;
3823(b ) The agency has exceeded its grant of rulemaking
3833authority, citation to which is required by
3840s. 120.54(3)(a )1.;
3843(c ) The rule enlarges, modifies, or contravenes the
3852specific provisions of law implemented, citation to
3859which is required by s. 120.54(3)(a)1.;
3865(d ) The rule is vague, fails to establish adequate
3875standards for agency decisions, or vests unbridled
3882discretion in the agency;
3886(e ) The rule is arbitrary or capricious;
3894(f ) The rule is not supported by competent
3903substantial evidence; or
3906(g ) The rule imposes regulatory costs on the
3915regulated person, county, or city which could be
3923reduced by the adoption of less costly alternatives
3931that substantially accomplish the statutory objectives.
393746. Sections 120.52(8) and 120.536(1), Florida Statutes
3944( Supp. 1996 ), both also provide:
3951A grant of rulemaking authority is necessary but not
3960sufficient to allow an agency to adopt a rule; a
3970specific law to be implemented is also required. An
3979agency may adopt only rules that implement, interpret,
3987or make specific the particular powers and duties
3995granted by the enabling statute. No agency shall have
4004authority to adopt a rule only because it is reasonably
4014related to the purpose of the enabling legislation and
4023is not arbitrary and capricious, nor shall an agency
4032have the authority to implement statutory provisions
4039setting forth general legislative intent or policy.
4046Statutory language granting rulemaking authority or
4052generally describing the powers and functions of an
4060agency shall be construed to extend no further than the
4070particular powers and duties conferred by the same
4078statute.
407947. Section 849.086(4), Florida Statutes ( Supp. 1996 ),
4088provides in pertinent part:
4092AUTHORITY OF DIVISION .The Division of Pari-mutuel
4099Wagering of the Department of Business and Professional
4107Regulation shall administer this section and regulate
4114the operation of cardrooms under this section and the
4123rules adopted pursuant thereto, and is hereby
4130authorized to:
4132(a) Adopt rules, including, but not limited to: the
4141issuance of cardroom and employee licenses for cardroom
4149operations; the operation of a cardroom ; recordkeeping
4156and reporting requirements; and the collection of all
4164fees and taxes imposed by this section.
4171(b) Conduct investigations and monitor the operation of
4179cardrooms and the playing of authorized games therein.
4187( emphasis added.)
419048. Section 550.0251(12), Florida Statutes ( Supp. 1996 ),
4199also provides in pertinent part:
4204The division shall have full authority and power to
4213make, adopt, amend, or repeal rules relating to
4221cardroom operations, to enforce and to carry out the
4230provisions of s. 849.086, and to regulate the
4238authorized cardroom activities in the state.
424449. Section 849.086(2)(a), Florida Statutes ( Supp. 1996 ),
4253defines authorized games as those games authorized by s.
4262849.085(2)(a) and which are played in a non-banking manner.
427150. Section 849.085(2)(a), Florida Statutes (1995),
4277authorizes Penny-ante games and defines them as follows:
4285Penny-ante game means a game or series of games of
4295poker, pinochle, bridge, rummy, canasta, hearts,
4301dominos, or mah-jongg in which the winnings of any
4310player in a single round, hand, or game do not exceed
4321$10 in value.
432451. It is concluded that Sections 849.086(4) and
4332550.0251(12), Florida Statutes ( Supp. 1996), authorize the
4340adoption of proposed Florida Administrative Code Rule 61D-11.026,
4348and that Florida Administrative Code Rule 61D-11.026 properly
4356implements Sections 849.086(2)(a) and 849.085(2)(a), Florida
4362Statutes ( Supp. 1996).
436652. It is clear from the evidence that a rule definition
4377of poker is necessary. Without one, it could be argued, as the
4389Petitioner has, that Big Poker 21 and Florida Twenty-One--games
4398more similar to Black Jack or 21--and a pure game of chance like
4411the first portion of Sure 2 Win are poker. In addition, it could
4424be argued that all of the indeterminate number of games based on
4436Poker contained in Hoyles and the New Complete Hoyle Revised ,
4446including the many that are wild beyond belief, are poker.
4457Finally, Hoyles and the New Complete Hoyle Revised also include
4467dealers choice games that are poker essentially because the
4476dealer says they are. The New Complete Hoyle Revised
4485acknowledges that some dealers choice games are not variations
4494of poker at all. As a clearly necessary definition of poker,
4506proposed Florida Administrative Code Rule 61D-11.026 only
4513implements Sections 849.086(2)(a) and 849.085(2)(a), Florida
4519Statutes ( Supp. 1996); it does not enlarge, modify, or contravene
4530those statutes. Cf . Section 120.52(8)(b)-(c), Florida Statutes
4538( Supp . 1996). See also General Telephone Co. of Fla. v. Marks ,
4551500 So. 2d 142, 144 (Fla. 1986) ; Fairfield Communities v. Fla.
4562Land and Water Adjudicatory Commn , 522 So. 2d 1012 (Fla. 1 st DCA
45751988) ; Seminole Tribe of Fla. v. Dept. of Business Reg., Div. of
4587Alcoholic Beverages and Tobacco , 496 So. 2d 193 (Fla. 1 st DCA
45991986) ; Dept. of Prof. Reg., Bd. of Medical Examiners v. Durrani ,
4610455 So. 2d 515 (Fla. 1 st DCA 1984).
461953. It also is concluded, as reflected in the findings,
4629that proposed Florida Administrative Code Rule 61D-11.026 is not
4638arbitrary or capricious, and that it is supported by competent
4648substantial evidence. Cf . Section 120.52(8)(e)-(f), Florida
4655Statutes ( Supp . 1996). See also Bd. of County Commnrs of
4667Brevard v. Snyder , 627 So. 2d 469, 474 (Fla. 1993) (competent,
4678substantial evidence) ; Degroot v. Sheffield , 95 So. 2d 912 (Fla.
46881957)(competent, substantial evidence) ; Dravo Basic Materials
4694Co., Inc., v. Dept. of Transp. , 602 So. 2d 632, 634 (Fla. 2 nd DCA
47091992)(arbitrary and capricious) ; Agrico Chem. Co. v. Dept. of
4718Environmental Reg. , 365 So. 2d 759, 763 (Fla. 1 st DCA 1978)
4730(arbitrary and capricious). Although proposed Florida
4736Administrative Code Rule 61D-11.026 would eliminate many dealers
4744choice games in Hoyles and the New Complete Hoyle Revised , it
4755incorporates the characteristics of standard poker described in
4763Hoyles and is supported by expert testimony as to the
4773characteristics of standard poker.
477754. Florida Administrative Code Rule 61D-11.002, adopted on
4785January 7, 1997, required all card games be approved by the
4796Division and provides in pertinent part:
4802(2)(a ) All card games in Hoyle's Modern Encyclopedia
4811of Card Games, by Walter B. Gibson, published by
4820Doubleday and Company, Inc., April 1974 1st Edition
4828hereinafter ( Hoyle's) incorporated herein by reference,
4835that are authorized by and played in a manner
4844consistent with Section 849.085(2)(a) and Section
4850849.086, Florida Statutes, and the rules promulgated
4857thereunder, shall be approved by the division. All
4865other card games shall be approved by the division if
4875the type of card games and the rules of the card games,
4887as specified in BPR Form 16-001, meet the requirements
4896of Section 849.085(2)(a) and Section 849.086, Florida
4903Statutes, and the rules promulgated thereunder.
4909Florida Administrative Code Rule 61D-11.003(1), also adopted on
4917January 7, 1997, provided in pertinent part:
4924The ranking of cards in a hand shall be consistent with
4935the rules of Hoyles or the modified rules of the game
4946as submitted to the Division by the cardroom operator
4955and approved by the Division.
496055. As found, it would appear that Florida Administrative
4969Code Rules 61D-11.002(2)(a) and 61D-11.003(1), as written, may
4977have contemplated the approval of all poker games in Hoyles , so
4988long as they are played in a non-banking manner. However,
4998subsequent experience under the rules led to the Divisions
5007incipient policy and to proposed Florida Administrative Code Rule
501661D-11.026. Proposed Florida Administrative Code Rule 61D-11.026
5023is not inconsistent with Florida Administrative Code Rules
503161D-11.002(2)(a) and 61D-11.003(1). Rather, it clarifies and
5038refines the earlier rules.
504256. Even if the Divisions approvals of Hollywood 2-3
5051Flash, Hollywood 4-3 Flash, and Three-Card Stud on January 10,
50611997, were contrary to the Divisions incipient policy and raised
5071a question as to how definite and firm the policy was at that
5084time, those approvals did not prevent the Division from proposing
5094Florida Administrative Code Rule 61D-11.026 to make its policy
5103clear. To the contrary, that is what agencies are supposed to
5114do.
5115DISPOSITION
5116Based on the foregoing Findings of Fact and Conclusions of
5126Law, the Petition for Administrative Determination of the
5134Invalidity of Proposed Rule challenging proposed Florida
5141Administrative Code Rule 61D-11.026 is denied, and the proposed
5150rule is declared valid.
5154DONE AND ORDERED this 19th day of August, 1997, in
5164Tallahassee, Leon County, Florida.
5168________ ___________________________
5170J. LAWRENCE JOHNSTON
5173Administrative Law Judge
5176Division of Administrative Hearings
5180The DeSoto Building
51831230 Apalachee Parkway
5186Tallahassee, Florida 32399-3060
5189(904) 488- 9675 SUNCOM 278-9675
5194Fax filing (904) 921-6847
5198Filed with the Clerk of the
5204Division of Administrative Hearings
5208this 19th day of August, 1997.
5214COPIES FURNISHED:
5216Miriam S. Wilkinson, Esquire
5220Department of Business and
5224Professional Regulation
52261940 North Monroe Street
5230Tallahassee, Florida 32399-1007
5233Harold F. X. Purnell, Esquire
5238Rutledge, Ecenia, Underwood,
5241Purnell and Hoffman
5244215 South Monroe Street, Suite 420
5250Tallahassee, Florida 32301-1841
5253Deborah R. Miller, Director
5257Division of Pari-Mutuel Wagering
5261Department of Business and
5265Professional Regulation
52671940 North Monroe Street
5271Tallahassee, Florida 32399-1007
5274Lynda L. Goodgame
5277General Counsel
5279Department of Business and
5283Professional Regulation
52851940 North Monroe Street
5289Tallahassee, Florida 32399-0792
5292Carroll Webb, Executive Director
5296Administrative Procedures Committee
5299120 Holland Building
5302Tallahassee, Florida 32399-1300
5305Liz Cloud, Chief
5308Bureau of Administrative Code
5312Department of State
5315The Elliot Building
5318Talllahassee, Florida 32399-0250
5321NOTICE OF RIGHT TO JUDICIAL REVIEW
5327A party who is adversely affected by this Final Order is entitled
5339to judicial review pursuant to Section 120.68, Florida Statutes.
5348Review proceedings are governed by the Florida Rules of Appellate
5358Procedure. Such proceedings are commenced by filing one copy of
5368a notice of appeal with the Agency clerk of the Division of
5380Administrative Hearings and a second copy, accompanied by filing
5389fees prescribed by law, with the District Court of Appeal, First
5400District, or with the District Court of Appeal in the Appellate
5411District where the party resides. The notice of appeal must be
5422filed within 30 days of rendition of the order to be reviewed.
- Date
- Proceedings
- Date: 03/03/1999
- Proceedings: Record Returned from the Second DCA rec`d
- Date: 11/26/1997
- Proceedings: Index, Record, Certificate of Record sent out.
- Date: 11/17/1997
- Proceedings: Payment for indexing in the amount of $28.00 filed.
- Date: 10/16/1997
- Proceedings: Invoice in the amount of $28.00 for indexing sent out.
- Date: 10/16/1997
- Proceedings: Index sent out.
- Date: 09/18/1997
- Proceedings: Letter to DOAH from DCA filed. DCA Case No. 2-97-3877.
- Date: 09/12/1997
- Proceedings: Certificate of Notice of Administrative Appeal sent out.
- Date: 09/11/1997
- Proceedings: Notice of Appeal filed.
- Date: 07/25/1997
- Proceedings: Proposed Final Order of Petitioner filed.
- Date: 07/24/1997
- Proceedings: (Respondent) Proposed Final Order filed.
- Date: 06/26/1997
- Proceedings: Order Cancelling Final Hearing and Establishing PFO Deadline sent out. (PFO`s due within 30 days)
- Date: 06/20/1997
- Proceedings: Joint Prehearing Stipulation and Joint Motion to File Proposed Recommended Orders in Lieu of Formal Hearing filed.
- Date: 06/03/1997
- Proceedings: Order Taking Official Recognition sent out. (re: transcripts & exhibits)
- Date: 06/02/1997
- Proceedings: Index, Record, Certificate of Record sent out.
- Date: 06/02/1997
- Proceedings: (Respondent) Motion for Judicial Notice of Prior Administrative Proceeding filed.
- Date: 05/20/1997
- Proceedings: Notice of Final Hearing sent out. (hearing set for 6/25/97; 9:00am; Tallahassee)
- Date: 05/19/1997
- Proceedings: (Respondent) Notice of Waiver (filed via facsimile).
- Date: 05/08/1997
- Proceedings: Order of Assignment sent out.
- Date: 05/07/1997
- Proceedings: (DBPR) Notice of Related Case filed. (for 97-0031, 97-0376 & 97-2080RP)
- Date: 05/05/1997
- Proceedings: Letter to Liz Cloud & Carroll Webb from M. Lockard w/cc: Agency General Counsel sent out.
- Date: 04/30/1997
- Proceedings: Petition for Administrative Determination of the Invalidity of Proposed Rule filed.
Case Information
- Judge:
- J. LAWRENCE JOHNSTON
- Date Filed:
- 04/30/1997
- Date Assignment:
- 05/12/1997
- Last Docket Entry:
- 03/03/1999
- Location:
- Tallahassee, Florida
- District:
- Northern
- Agency:
- Department of Business and Professional Regulation
- Suffix:
- RP