Summary: The issues to be determined in this proceeding are: (1) whether PPI, Inc. is entitled to issuance of the summer jai alai permit issued by the Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering, on October 26, 2018; (2) whether any of the following alleged agency statements as articulated by Petitioner, Florida Standardbred Breeders and Owners Association, Inc., are unadopted rules, and (3) 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 to PPI, Inc.2: 2 On January 16, 2019, Petitioner filed a Petition Challenging Agency Statement as an Unadopted Rule and Motion to Consolidate with Pending Case No. 18-6339 ("Rule Challenge Petition"). 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 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; 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. 3 Rule Challenge Petition Exhibit F contains the same information as Exhibit B to the parties' Amended Joint Prehearing Stipulation, which has been incorporated into Finding of Fact paragraph 149 of this Recommended Order. That notwithstanding the provisions of section 550.0745(1), the Division will approve an application for a [summer jai alai] permit without regard to the fact that the permitholder alleged to have the smallest play or total pool in Broward County, whether during the two consecutive state fiscal years 2004/2005 and 2005/2006 or during the two consecutive state fiscal years 2006/2007 and 2007/2008 was situated in Miami-Dade County as opposed to Broward County; 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;" T]hat 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 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.Respondent is entitled to issuance of a summer jai alai permit. Petitioner did not prove that any alleged agency statements were unadopted rules.