STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ST. PETERSBURG KENNEL )

CLUB,INC.; WEST FLAGLER ) ASSOCIATES LTD.; ASSOCIATED ) OUTDOOR CLUBS, INC.; WASHINGTON ) COUNTY KENNEL CLUB INC.; AND ) SOUTHWEST FLORIDA ENTERPRISES, ) INC., )

)

Petitioners, )

)

vs. )

) DEPARTMENT OF BUSINESS AND ) PROFESSIONAL REGULATION, )

DIVISION OF PARI-MUTUEL )

WAGERING )

)

Respondent. )

Case No. 04-2470RU

)

FINAL ORDER

Administrative Law Judge Don W. Davis of the Division of Administrative Hearings (DOAH) held a final hearing in the above-styled cause on September 13, 2004, in Tallahassee, Florida.

APPEARANCES

For Petitioners: Harold F. Purnell, esquire

Gary R. Rutledge, Esquire

Rutledge, Ecenia, Purnell & Hoffman, P.A. Post Office Box 551

Tallahassee, Florida 32302-0551

For Respondent: Ralf E. Michels, Esquire

Department of Business

and Professional Regulation Division of Pari-Mutuel Wagering 1940 North Monroe Street Tallahassee Florida, 32399-2202

STATEMENT OF THE ISSUE

Whether Respondent’s statement contained in June 4, 2004, correspondence to the controller of the Daytona Beach Kennel Club, Inc., constitutes a rule of the agency which has not been adopted by the rule making procedures provided in Section 120.54, Florida Statutes. Statutory references are to Florida Statutes, 2004, absent contrary indication.

PRELIMINARY STATEMENT

Petitioner Daytona Kennel Club, by correspondence of

May 27, 2004, provided a revised cardroom calendar to Respondent for approval. Respondent, in reply correspondence of June 4, 2004, pointed out that proposed Sunday cardroom operation as a result of Saturday live racing events that extended into Sunday morning, was not permissible under provisions of Section 849.086(7)(b), Florida Statutes.

On July 15, 2004, Petitioners filed with DOAH a Petition Challenging Agency Statement Defined as a Rule. Subsequent unopposed motions for continuance requested by the parties were granted, and the matter eventually came on for final hearing on September 13, 2004.

At the final hearing, Respondent and Petitioner offered one exhibit into evidence, which was accepted. Official recognition of the contents of the file in this case was requested by the parties and granted. Stipulation of the parties to other facts in issue was also accepted in lieu of live testimony.

At the conclusion of the final hearing, the parties agreed on a submittal date of September 28, 2004, for the filing of Proposed Final Orders and on an extension of the deadline for the entry of a final order to October 28, 2004. No transcript of the proceeding was provided. Both parties filed Proposed Final Orders, which have been utilized to the extent possible in the preparation of this Final Order.

FINDINGS OF FACT

1. Petitioners are St. Petersburg Kennel Club, Inc; West Flagler Associates, Ltd. (Flagler Greyhound Track); Washington County Kennel Club, Inc. (Ebro Greyhound Track); Daytona Beach Kennel Club, Inc. (Daytona Beach Kennel Club); and Southwest Florida Enterprises, Inc. (Bonita-Ft. Myers Greyhound Track).

2. Respondent is the State of Florida, Department of Business and Professional Regulation, Division of Pari-mutuel Wagering, an agency created by Section 20.165(2)(f), Florida Statutes. Pursuant to Chapter 550, Florida Statutes, Respondent is vested with general regulatory authority over Petitioners and

   the operation of cardrooms at licensed and permitted pari-mutuel facilities.

3. Each Petitioner is the holder of a pari-mutuel waging permit and a license issued by Respondent pursuant to provisions of Chapter 550, Florida Statutes, for the conduct of pari-mutuel wagering on greyhound races. Each Petitioner also holds a licensed issued by Respondent pursuant to Section 849.086, Florida Statutes, for conduct of a cardroom at its pari-mutuel facility.

4. Each Petitioner is authorized to conduct a “meet” consisting of live racing. Each authorized meet includes evening performances generally consisting of 14 races. One or more of those races can take place after midnight but before 1:30 a.m. on the next calendar day. Each Petitioner is authorized to accept pari-mutuel wagers on each such race.

5. Petitioner Daytona Kennel Club, by correspondence of May 27, 2004, provided a revised cardroom calendar to Respondent for approval. Respondent, in reply correspondence of June 4, 2004, pointed out that proposed day-long cardroom operation on Sunday as a result of Saturday live racing events that extended into Sunday morning, was not permissible under provisions of Section 849.086(7)(b), Florida Statutes. Respondent’s correspondence, in pertinent part, reads as follows:

   [Y]ou contend that if at least one Saturday race will occur after 12:00 midnight, then Sunday cardroom operation would be permitted, without any additional pari-mutuel events being held that day, under Section 849.086(7)(b), Florida Statutes.

   The foregoing statutory section states, “[a] cardroom may be operated at the facility only when the facility is authorized to accept wagers on pari-mutuel events during its authorized meet.” A plain reading of this language makes it evident that the Legislature intended that cardrooms be considered an adjunct to live racing, not a replacement or a substitute. As it stands today, you have not been authorized to conduct a pari- mutuel event on Sundays.

   
   

6. Respondent’s letter of June 4, 2004, to Petitioner Daytona Beach Kennel Club, was a specific response to matters raised by that Petitioner in its letter of May 27, 2004.

7. A final declaratory judgment issued on July 26, 2004, in the Second Judicial Circuit in Case No. 2002-CA-2971 invalidates changes to Section 550.615(6), Florida Statutes, resulting from passage of Chapter 96-364, Laws of Florida. Presently under appeal and stayed pending further decision, that ruling also invalidates Section 849.086, Florida Statutes, due to the non-severability language contained in Section 550.71, Florida Statutes. In the event of an appellate decision affirming that ruling, Respondent’s authority to regulate the hours of cardroom operation would be rendered inoperative.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this cause, pursuant to Section 120.56(4)(f), Florida Statutes.

9. Provisions, applicable to this matter, of Section 120.52(15), Florida Statutes, define an administrative rule in the following language:

   "Rule" 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 specifically required by statute or by an existing rule.

   
   

10. Petitioners have the burden in this proceeding of establishing the general applicability of Respondent’s statements in the June 4, 2004 letter to all Petitioners. Petitioners, their arguments to the contrary, notwithstanding have not met this burden.

11. Instead, the June 4, 2004 letter was a specific response by Respondent to an inquiry from Petitioner Daytona Beach Kennel Club, to matters raised by that Petitioner in its letter of May 27, 2004.

12. Even if Respondent’s action were considered to be the exercise of an unpromulgated rule, the official recognition in this proceeding of the Final Declaratory Judgment issued on

    July 26, 2004, in the Second Judicial Circuit in Case No. 2002- CA-2971 must be considered in the context of Section 120.54(1)(a)1.b., Florida Statutes, which provides that an agency may be excused from rulemaking where “[r]elated matters are not sufficiently resolved to enable the agency to address a statement by rulemaking.” Obviously, Respondent has no ability to determine the outcome of the pending appeal of the declaratory judgment; a result that could conceivably invalidate Respondent’s authority to permit cardroom activity.

13. Accordingly, Respondent’s letter does not implement, interpret or prescribe law or policy; and does not describe procedure or practice requirements of the agency or impose requirements or information not specifically required by statute or by existing rule. § 120.52, Fla. Stat.

14. Applying these standards, it is abundantly clear that the qualified language of Respondent's June 4, 2004 letter to one of the Petitioners does not violate Section 120.54(1)(a),

Florida Statutes.

ORDERED

Based on the foregoing Findings of Fact and Conclusions of Law set forth herein, it is

ORDERED:

The Petition is dismissed.

DONE AND ORDERED this 12th day of October, 2004, in Tallahassee, Leon County, Florida.

DON W. DAVIS

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 12th day of October, 2004.

COPIES FURNISHED:

Harold F. Purnell, Esquire Gary R. Rutledge, Esquire

Rutledge Ecenia, Purnell & Hoffman, P.A. Post Office Box 551

Tallahassee, Florida 32302-0551

Ralf E. Michels, Esquire Department of Business

and Professional Regulation Division of Pari-Mutuel Wagering Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-2202

Scott Boyd, Executive Director

Joint Administrative Procedures Committee

120 Holland Building Tallahassee, Florida 32399-1300

Liz Cloud, Program Administrator Bureau of Administrative Code

R.A. Gray Building, Suite 101 Tallahassee, Florida 32399-2202

Leon Biegalski, General Counsel Department of Business

and Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-2202

Diane Carr, Secretary Department of Business

and Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-2202

David Roberts, Director Department of Business

and Professional Regulation Division of Pari-Mutuel Wagering Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-2202

THE 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 Appeal with the agency Clerk of the Division of Administrative Hearings and a copy, accompanied by filing fees prescribed by law, with the District Court of Appeal, First District, or with the District Court of Appeal in the Appellate District where the party resides. The notice of appeal must be filed within 30 days of rendition of the order to be reviewed. decision

Docket for Case No: 04-002470RU

Orders for Case No: 04-002470RU