The factual issues in this unadopted-rule challenge relate to whether Respondent, in connection with the administration of the state’s gaming laws, has formulated statements of general applicability that have the effect of giving each slot machine licensee the rights (i) to maintain and operate an outdoor live gaming facility for the conduct of pari-mutuel wagering activities, wherein slot machine gaming areas could not lawfully be located, so long as its slot machines are housed elsewhere, in an enclosed building; and (ii) to locate slot machine gaming areas in a separate, stand-alone building having no integral systems, structures, or elements, provided the building is located on the same parcel, and on the same side of the street, river, or similar obstacle, as the live gaming facility. If Respondent has developed such a statement or statements, then the ultimate issue is whether such statements meet the statutory definition of an unadopted rule.Respondent’s statements that slot machine licensees have the rights to operate outdoor live gaming facilities, and to locate slot machine gaming areas in separate, stand-alone buildings, are unadopted rules.

The issues to be determined in this proceeding are: (1) whether any of the following alleged agency statements as articulated by Petitioner, Florida Standardbred Breeders and Owners Association, Inc., are unadopted rules, and (2) if so, whether the Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering, relied on any of the unadopted rules as a basis for issuing the summer jai alai permit at issue in Case No. 18-6339 to PPI, Inc.2: 2 On January 16, 2019, Petitioner filed the Petition Challenging Agency Statement as an Unadopted Rule and Motion to Consolidate with Pending Case No. 18-6339 ("Rule Challenge Petition") that gave rise to this case. The Rule Challenge Petition was filed pursuant to sections 120.57(1)(e) and 120.56(4), and articulated ten statements that Petitioner alleges constitute unadopted rules on which the Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering, relied in issuing the summer jai permit to PPI, Inc. The Rule Challenge Petition had the effect of amending the Petition for Formal Administrative Hearing Involving Disputed Issues of Material Fact that was filed with the agency on November 16, 2018, and referred to DOAH on December 3, 2018, to add a charge that the agency had relied on one or more unadopted rules as the basis of its decision, in violation of section 120.57(1)(e)1. That notwithstanding the provisions of section 550.0745(1)[Florida Statutes], the Division will approve an application for a summer jai alai permit without regard to whether there is an eligible permitholder in an eligible county that has had the smallest play or total pool within one of the applicable counties, Miami-Dade or Broward, for two consecutive state fiscal years; That notwithstanding the provisions of section 550.0745(1), a summer jai alai permit was created in Broward County in association with the consecutive state fiscal years 2006/2007 and 2007/2008 notwithstanding that there was no eligible permitholder in Broward County that had the smallest play or total pool in Broward County for both of said consecutive fiscal years, 2006/2007 and 2007/2008; That notwithstanding the provisions of section 550.0745(1), the Division approved PPI's application for a summer jai alai permit without regard to the fact that there was no eligible permitholder in Broward County that had the smallest play or total pool in Broward County for both of the two consecutive state fiscal years identified in PPI's application, to-wit: 2006/2007 and 2007/2008; That notwithstanding the provisions of section 550.0745(1), a summer jai alai permit was created in Broward County in association with the consecutive state fiscal years 2004/2005 and 2005/2006, notwithstanding that there was no eligible permitholder in Broward County that had the smallest play or total pool for both of said consecutive state fiscal years, 2004/2005 and 2005/2006; That notwithstanding the provisions of section 550.0745(1), the Division approved PPI's application for a summer jai alai permit without regard to the fact that there was no eligible permitholder in Broward County that had the smallest play or total pool in Broward County for both of the two consecutive state fiscal years identified in the Division's calculation chart attached as Exhibit F [to the Rule Challenge Petition], to-wit: 2004/2005 and 2005/20063; That notwithstanding the provisions of section 550.0745(1), the Division, in making the calculations required by section 550.0745(1) for the purposes of determining the availability of a summer jai permit, improperly and erroneously excludes from such calculations the pari-mutuel handle generated by each of the pari-mutuel permitholders in Broward County on the following wagering pools/categories, to-wit: [i]ntertrack wagering handle as a guest; [i]ntertrack wagering as a host on "ITW rebroadcasts;" and "[s]imulcast handle as a guest;" That notwithstanding the provisions of section 550.0745(1), the Division approved PPI's application for a summer permit after improperly and erroneously excluding from the calculations required by section 550.0745 the pari-mutuel handle generated by each of the pari-mutuel permitholders in Broward County on the following wagering pools/categories, to-wit: [i]ntertrack wagering handle as a guest; [i]ntertrack wagering as a host on "ITW rebroadcasts;" and "[s]imulcast handle as a guest;" That notwithstanding the provisions of section 550.0745(1), the Division, in making the calculations required by section 550.0745(1) for the purposes of determining that the Bet Miami permit had the smallest pari- mutuel handle in Broward County for the consecutive fiscal years 2004/2005 and 2005/2006, improperly and erroneously excluded from such calculations all of the pari-mutuel handle generated by the Bet Miami permit during said consecutive state fiscal years, 2004/2005 and 2005/2006, and instead erroneously pro-rated the handle between the two leased locations at which the Bet Miami permit operated during said fiscal years; That notwithstanding the provisions of section 95.11 or any similar statute that imposes a statute of limitation on the taking or initiation 3 Rule Challenge Petition Exhibit F contains the same information as Exhibit B to the parties' Amended Joint Pre-hearing Stipulation, which has been incorporated in Finding of of any particular action, the Division will approve an application for a summer jai alai permit notwithstanding that the application was filed outside either the four-year period described in section 95.11 or outside the applicable limitation period if not section 95.11.Petitioner did not prove that any of the alleged agency statements were unadopted rules. Unadopted rule challenge under section 120.56(4) is dismissed.

Whether the FHBPA, FTBOA, and OBS have standing to bring this unadopted rule challenge; and, if so, whether their petition was timely; and, if so, whether the Division’s determination that a new summer jai alai permit was made available and that Calder is eligible for a new summer jai alai permit pursuant to section 550.0745(1), Florida Statutes (2019), is based on unadopted rules.FHBPA, FTBOA, and OBS have standing to asssert that alleged agency statements constitute unadopted rules. However, none of the alleged statements constitute unadopted rules.

Whether the FHBPA, FTBOA, and OBS have standing to challenge the Division’s issuance of a new summer jai alai permit to Calder; and, if so, whether FHBPA’s petition and FTBOA’s and OBS’s motions to intervene were timely; and, if so, whether the Division properly granted a new summer jai alai permit to Calder pursuant to section 550.0745(1), Florida Statutes (2019), and Florida Administrative Code Rule 61D-4.002.FHBPA, FTBOA, and OBS have standing to asssert that alleged agency statements constitute unadopted rules. However, none of the alleged statements constitute unadopted rules.

The issues to be determined are whether certain alleged statements by Respondent, the Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering (the Division or Respondent), constitute unadopted rules in violation of section 120.54(1), Florida Statutes (2019), and whether Florida Administrative Code Rule 61D-6.011, as effective September 5, 2018, is an invalid exercise of delegated legislative authority as defined in section 120.52(8)(c), (d), and (e).Petitioner did not demonstrate that alleged Agency statements were rules, or that the challenged rule was an invalid exercise of delegated legislative authority.

Whether Petitioner, Golden Horn Condominium Association ("Golden Horn" or "Association"), was the prevailing party in DOAH Case No. 18-2739 and is entitled to an award of attorneys' fees and costs to be paid by Respondent, Department of Business and Professional Regulation, Division of Florida Condominiums, Timeshares, and Mobile Homes ("Division"), pursuant to section 57.105, Florida Statutes (2018).1/Association is not entitled to fees and costs under section 57.105. Association did not prevail in underlying case and the Association failed to demonstrate that the Division's claims were not supported by the material facts or application of law.

Does the Department of Business and Professional Regulation, Division of Condominiums, Timeshares and Mobile Homes’ (“the Division”), approval of timeshare developers’ requests to provide purchasers with a public offering statement via a website link amount to an unadopted rule within the meaning of section 120.52(8)(a), Florida Statutes (2017).1/ Also, does the Division’s approval of timeshare developers’ requests to provide purchasers with public offering statements via a website link amount to an invalid exercise of delegated legislative authority within the meaning of section 120.52(8)(c).Petitioner failed to demonstrate that Respondent's approval of timeshare developers' requests to provide purchasers with required documentation via a website link amounts to an unadopted rule or an invalid exercise of delegated legislative authority.

Whether Petitioner carried his burden of proving his good moral character and entitlement to a yacht salesperson's license under chapter 326, Florida Statutes.Petitioner, who had a federal felony conviction in 2012 for conspiracy to commit bank fraud, did not persuasively establish his good moral character sufficient to support his application for a Florida yacht salesperson's license under chapter 326.