The Issue The issue for resolution in this case is whether Proposed Rules 8E- 4.003(3), (4), (9), (10) & (11) and Proposed Rule 8E-4.005 constitute invalid exercises of delegated legislative authority as asserted by Petitioner.
Findings Of Fact Findings based on written stipulations. On September 11, 1992, Petitioner submitted an application for certification as a "facility for a new professional sports franchise." Petitioner's application contains the information required by Section 288.1162(4)(a)-(g), Florida Statutes, but does not demonstrate that eligible costs for which funding is being sought pursuant to Section 212.20, Florida Statutes, are for costs incurred after the award of the new professional sports franchise or after the start of certification, as required in Proposed Rule 8E- 4.003(3). Due to the effect of the proposed rule on Petitioner, Petitioner is a "substantially affected person" as that term is used in Section 120.54(4)(a), Florida Statutes. Findings based on evidence at hearing. On October 30, 1992, the Department of Commerce published Proposed Rule 8E-4 in the Florida Administrative Weekly. Portions of that proposed rule are the subject of this rule challenge proceeding. The full text of the proposed rule (with the challenged portions underscored) is as follows: 8E-4.001 Purpose. This rule contains the procedure for applying for certification pursuant to s. 288.03, Florida Statutes. 8E-4.002 Application Procedures. An application for certification under s. 288.03, Florida Statutes, as a "Facility For A New Professional Sports Franchise" or a "New Spring Training Franchise Facility" shall be submitted to the Secretary of Commerce and shall comply with and conform to the following requirements: An original and 5 copies shall be submitted. Applicants shall be a "unit of local government" as defined in s. 218.369, Florida Statutes, or a private sector group that has contracted to construct or operate a professional sports franchise facility on land owned by a unit of local government. The application must be signed by an official senior executive of the applicant. Items or forms requiring certification shall be notarized according to Florida Law providing for penalties for falsification. 8E-4.003 Application Contents. An application for certification as a Facility for New Professional Sports Franchises shall include the following: Documentation that the franchise team meets the following requirements: The franchise is not based in Florida prior to July 1, 1990. The applicant has a signed agreement with a new professional sports franchise for the use of the facility for at least 5 years or more. The new professional sports franchise agreement has been approved by one of the following leagues: National League (baseball) American League (baseball) National Basketball Association National Football League National Hockey League An independent analysis or study which demonstrates that the use and operation of the professional sports franchise facility will generate revenues on transactions at the facility of $2 million or more annually by taxes imposed under Part I of Chapter 212, Florida Statutes. Documentation of the actual cost or cost estimate for new construction, reconstruction, or renovation of the facility. Such documentation of cost shall be for construction, reconstruction, or renovation of the facility incurred or to be incurred after the award of the new professional sport franchise or after the start of certification. Eligible costs also include those incurred after July 1, 1990 and prior to the granting of a franchise where the costs were a necessary part of the competitive process for the awarded franchise. The applicant shall provide a commencement date upon which new construction, reconstruction, or renovation began or will begin. Projections demonstrating that the new franchise will attract a paid attendance of more than 300,000 annually. All data sources and methodologies of the projections must be included. Documentation that the municipality in which the facility is located, or the county if the facility is in an unincorporated area, has certified by resolution after a public hearing that the application serves a public purpose. Documentation that a unit of local government as defined in s. 218.369, Florida Statutes, is responsible for the construction, management, or operation of the professional sports franchise facility, or holds title to the property on which the professional sports franchise facility is located. Documentation that the applicant has demonstrated that it has provided, is capable of providing, or has a financial or other commitments to provide more than one-half of the costs incurred or related to the improvement and development of the facility. Statement certifying that applicant will comply with s. 288.1167, Florida Statutes, relating to requirements for minority participation. Documentation of the applicant's organization structure and principals. Applicants that are private sector groups shall file a public entity crime affidavit as required by s. 287.133(3)(a), Florida Statutes. 8E-4.004 Application Contents. An application for certification as a New Spring Training Franchise shall include the following: Documentation that the baseball team franchise meets the following requirements: The franchise is not based in Florida prior to July 1, 1990. The applicant has a signed agreement with a new professional sports franchise for the use of the facility for a term of at least 15 years. The agreement is approved by either the National League or the American League of professional baseball. Projections which demonstrate that the new professional baseball spring training facility will attract a paid attendance of at least 50,000 annually. Documentation of the actual cost or cost estimate for new construction, reconstruction, or renovation of the facility. Such documentation of cost shall be for construction, reconstruction, or renovation of the facility incurred or to be incurred after the grant of certification. Eligible costs also include those incurred after July 1, 1990 and prior to the granting of a franchise where the costs were a necessary part of the competitive process for the awarded franchise. The applicant shall provide a commencement date upon which new construction, reconstruction, or renovation began or will begin. Documentation that a unit of local government as defined in s. 218.369, Florida Statutes, is responsible for the construction, management, or operation of the professional sports franchise facility, or holds title to the property on which the professional sports franchise facility is located. Documentation that the applicant has demonstrated that it has provided, is capable of providing, or has financial or other commitments to provide more than one-half of the costs incurred or related to the improvement and development of the facility. Documentation that the New Spring Training Franchise Facility is located in a county that is levying a tourist development tax pursuant to s. 125.0104(3)(b),(c),(d) and (l), Florida Statutes, at the rate of 4 percent by March 1, 1992, and 87.5 percent of the proceeds from such tax are dedicated for the construction of a spring training complex. A site map and certification that the facility is located within 20 miles of an interstate or other limited access highway system. Statement certifying that applicant will comply with s. 288.1167, Florida Statutes, relating to requirement for minority participation. Documentation of the applicant's organization structure and principals. Applicants that are private sector groups shall file a public entity crime affidavit as required by s. 287.133(3)(a), Florida Statutes. 8E-4.005 Application Processing. The Department of Commerce shall certify applications only after these rules have been published in the Florida Administrative Weekly and all requested public hearings have been held. Subsequent to this, the Department shall have two weeks following receipt of an application to notify an applicant of any deficiencies in an application. The Department will allow 30 days from the date of notification for the applicant to correct any such deficiencies. Upon determining that an applicant is or is not certifiable, the Secretary of Commerce will notify the applicant by means of an official letter of his status. If certifiable, the Secretary will notify the Executive Director of the Department of Revenue of such certification by means of an official letter. If the Department of Commerce determines that the applicant satisfies all the conditions of Section 288.1162, F.S., and this rule, certification shall be issued by the Department of Commerce no sooner than, either the date of commencement as provided by the applicant in 8E-4.003(5) or 8E-4.004(5) or 120 days following receipt of application under this rule whichever is the longer. No certification shall be issued until the Department of Commerce has verified that actual construction, reconstruction, or renovation has commenced. The Department of Revenue will begin distributing funds 60 days following certification, but no such distribution may be made prior to July 1, 1992, pursuant to s. 288.03, Florida Statutes. If and when the above-quoted proposed rule becomes an effective rule, the Department of Commerce intends to apply the provisions of the subject proposed rule in the course of determining whether to grant or deny the Petitioner's application for certification as a "facility for a new professional sports franchise." The Department of Commerce intends for the language in Proposed Rule 8E-4.003(3) and (4) to limit funding under the applicable statute to new facility construction costs or to costs of renovation of an existing facility. The Department intends to disallow the use of grant funds for existing stadium construction costs, even if such costs were expended to facilitate the future recruitment of a "new professional sports franchise." The new requirements for certification contained in Proposed Rule 8E-4.003 are considered by the Department to be substantive in nature. The purpose of the funding program created pursuant to Sections 288.1162 and 212.20, Florida Statutes (1991), is to encourage the recruitment of professional sports franchises to Florida. During the 1992 session of the Florida Legislature, amendments were proposed to Section 288.1162, Florida Statutes (1991), which would have had the effect of limiting funding under the program to a reimbursement of costs of new construction. In Senate Bill 216-H, the Legislature proposed authorizing the Department to require that information be submitted regarding cost estimates verified by the Department for the new construction, reconstruction or renovation of the facility. This estimate shall include the costs of debt service on, or the costs to fund debt service reserve funds, costs for arbitrage rebate obligations, and other costs payable with respect to, bonds issued for the new construction, reconstruction or renovation of the facility. (e.s) The amendments proposed in Senate Bill 216-H would have eliminated as an approved use of the funds payment of costs of refinancing construction bonds and would have limited the use of funds only to newly incurred costs. In addition, the proposed bill provided that upon certification of an applicant, the Department shall also certify to the Department of Revenue the amount to be paid monthly to the applicant. In the case of a professional sports franchise facility, such amount shall be the lesser of $166,667 per month for a 30 year period, or the costs of the project verified by the Department pursuant to paragraph (4)(g) [which is the language cited directly above] and amortized over a 30 year period. The statutory limitation proposed by Senate Bill 216-H is consistent with, if not identical to, the limitation intended by the Department of Commerce through the promulgation of Proposed Rule 8E-4. Senate Bill 216-H failed to be enacted into law.
The Issue Whether the state certified pool construction license number CP C008904 and the state certified general contractor's license number CG C002481 of Joaquin Vazquez should be revoked.
Findings Of Fact Division A of the Construction Trade Qualifying Board held a hearing on September 15, 1976, pertaining to ten (10) charges of violating the Dade County building code against Respondent Joaquin Vazquez. At the completion of this formal hearing, Joaquin Vazquez was found guilty of eight (8) of the ten (10) charges. Charles W. Leavitt, Jr., Clerk of the Construction Trades Qualifying Board In Metropolitan Dade County, Florida, identified the minutes of the Board Meeting held on September 15, together with the charges as set forth in letters dated May 10, 1976, and August 19, 1976. Copies of these instruments were introduced into evidence without objection. The Respondent did not deny the charges at the hearing and had not appealed the finding of guilt of eight (8) of the ten (10) charges at the conclusion of the formal hearing on September 15, 1976. Briefly the charges (spanning the term from July 1, 1975 to June 29, 1976), finds and penalties are as follows: Charge 1.: Allowing permit to be applied for and taken out in Respondent's name in order for Angela J. Stevens and/or Sparkle Blue Pools to construct a swimming pool. Found guilty - letter of reprimand. Charge 3.: Similar to Charge 1 - found guilty - certificate to be suspended for one (1) year. Charge 4.: Failure to supervise, direct and control, the construction or installation of a swimming pool taken out in Respondent's name. Found guilty - one (1) year suspension to run concurrent with any other suspensions. Charge 5.: Similar to Charge 1 - found guilty - ninety (90) day concurrent suspension. Charge 6.: Similar to Charge 4 - found guilty - ninety (90) day suspension. Charge 7.: Similar to Charge 1 - found guilty - revo- cation of certificates. Charge 8.: Similar to Charge 4 - found guilty - both certificates be revoked. Charge 10.: Allowing a permit to be applied for and taken out in Respondent's name in order for Jack Goodman and/or Precision Engineering, Inc., to construct a swimming pool. Found guilty - letter of reprimand. An Administrative Complaint was filed by the Petitioner through its executive director on November 12, 1976, citing the hearing and the charges and the finding of guilt of Respondent and stating that the results of said formal hearing show a violation of Florida Statute 468.112(2)(a), willful or deliberate disregard and violation of applicable building codes or laws of the state or any municipality, cities or counties thereof. Therefore, the Board seeks to revoke the state certified pool contractors license number CP C008904 and state certified general contractors license number CG C002481 of Joaquin Vazquez, the Respondent. The Respondent did not deny the charges but presented an attack on the character and veracity of the witness, Angela Stevens, in four (4) of the charges against him. He cited the witness Angela Stevens' failure to abide by probationary requirements imposed for her acting as a contractor without a license. Furthermore, the Respondent offered his own and a witness, Mr. Gonzalez's, testimony to the fact that he was solicitated by Angela Stevens to make false testimony to the effect that Angela Stevens was an employee of his when in fact she had never been. The charges against the Respondent were brought subsequent to the charges brought against the witness Angela Stevens. The Respondent contends that the affidavits and testimony of Angela Stevens were no more than self serving statements made in her own behalf in an attempt to cover up her criminal intentions and that the charges and finding of guilt of the Respondent were based largely on the affidavit and testimony of said witness. Respondent further offered a medical report indicating that he was unable to work in the month of May, 1975, and further his testimony was that he was out of the country in mid June and July, 1975, in order to recuperate from high blood pressure attacks. Petitioner contends: the undisputed evidence presented in the finding of guilt of the charges involved in the prior hearing are sufficient to find Respondent guilty of violating Section 468.112(2)(a), Florida Statutes, and that Respondent's license should be revoked. Respondent contends: the witness against him was self serving and an attempt to cover up her criminal intentions; that he in fact supervised some of the jobs he was found guilty of not supervising; that he was ill some of the time and did not willfully violate the code. The proposed facts and conclusions of the parties submitted after the hearing herein have been considered in this Recommended Order.
Recommendation Suspend the licenses, No. CP C008904 and No. CG C002481, of the Respondent Joaquin Vazquez for a period not to exceed six (6) months. DONE and ORDERED this 31st day of May, 1977, in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: David Linn, Esquire Post Office Box 1386 Tallahassee, Florida 32302 Jerome S. Reisman, Esquire 1515 Northwest 7th Street, #106 Miami Florida 33125 J. K. Linnan Executive Director Florida Construction Industry Licensing Board Post Office Box 8621 Jacksonville, Florida 32211
Recommendation It is RECOMMENDED that the Homeowners' objection to the issuance of the final site approval order permitting the helistop at Joe Robbie Stadium as requested in the Airport Site Approval and License Application filed on October 20, 1987 by Joe Robbie Stadium Corporation be dismissed. DONE and ENTERED this 29th day of August, 1989, at Tallahassee, Florida. WILLIAM R. DORSEY, JR. Hearing Officer Division of Administrative Hearings, The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of August, 1989. COPIES FURNISHED: Vernon L. Whittier, Jr., Esquire Department of Transportation 605 Suwannee Street, M.S. 58 Tallahassee, Florida 32399-0450 Robert L. Shevin, Esquire 200 South Biscayne Boulevard Suite 3300 Miami, Florida 33131-2385 George F. Knox, Esquire 4770 Biscayne Boulevard Suite 1460 Miami, Florida 33137 Kaye N. Henderson, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450 Thomas H. Bateman, III General Counsel Department of Transportation 562 Haydon Burns Building Tallahassee, Florida 32399-0450
The Issue Whether Respondent practiced beyond the scope of his certified commercial pool/spa contractor’s license and proceeded on a job without obtaining applicable local building department permits and inspections, as alleged in the Amended Administrative Complaint and, if so, the nature of the sanctions to be imposed.
Findings Of Fact Petitioner is the state agency charged with the licensing and regulation of the construction industry, including pool and spa contractors and electrical contractors, pursuant to section 20.165 and chapters 455 and 489, Florida Statutes. At all times material to the allegations in the Administrative Complaint, Respondent was licensed as a commercial pool/spa contractor in the State of Florida, having been issued license numbers CPC 05661, 1457406, and 1458031. Respondent was the primary qualifying agent of Cox Building Corporation, d/b/a Cox Pools (Cox Pools). Respondent has been registered, certified, or licensed as a swimming pool contractor since 1978. Over the course of his almost 40 years as a swimming pool contractor, Respondent has replaced thousands of pool lights and pool pumps. He believed that the replacement of pool equipment, which he understood to include pool lights, was within the allowable scope of work as a swimming pool contractor. On or about September 12, 2014, Cox Pools entered into a contract with John Patronis to replace four pool light fixtures, a booster pump, and other miscellaneous services for $4,681.17 at the Subject Property. The Subject Property falls within the jurisdiction of the Bay County Building Department. Respondent did not obtain an electrical permit for replacing the pool light fixtures at Subject Property. Mr. Carnley testified that the Bay County Building Department requires that pool light replacement be performed by a licensed electrician, and with a county-issued electrical permit. The permit must be obtained by an electrical contractor or a homeowner. Bay County would not have issued a permit to Respondent, because he was not an electrical contractor. The Bay County Building Department also requires an electrical permit for the replacement of a circuit breaker in the electrical box serving a swimming pool. A pool contractor is not authorized to replace circuit breakers. No permits were obtained to replace circuit breakers at the Subject Property. On September 15, 2014, during the course of replacing the pool light fixtures, an employee of Cox Pools, Joshua Cook, was electrocuted. The precise cause of the electrocution was not established, though no plausible basis exists for it being related to anything other than the replacement of the pool lights. After a period of several days following the accident involving Mr. Cook, Respondent returned to the Subject Property to complete the job. He personally went into the pool, put the light in the fixture and screwed it in, and left. The light was thereafter wired and energized by a Cox Pool service technician. Given the circumstances, Mr. Patronis was not asked to complete payment for the services performed. Nonetheless, it is clear that, but for the accident, Mr. Patronis would have been expected to pay for the services for which he contracted. The photographic evidence in this case demonstrates that between September 15, 2014, and some indeterminate time in 2016, a circuit breaker was replaced in the electrical box serving the Subject Property’s pool. The circuit breaker that existed on September 15, 2014, was a ground-fault circuit interrupter (GFCI). By 2016, the GFCI has been replaced with an arc-fault circuit interrupter (AFCI). Had Bay County performed an inspection of the electrical box with the AFCI, it would not have passed inspection. Respondent testified that he did not change the circuit breaker, that Cox Pools keeps no inventory of circuit breakers, and that service technicians do not carry circuit breakers on the trucks. Respondent acknowledged his understanding that replacing a circuit breaker is a job for an electrical contractor. At some time “recently,” Williams Electric was called to the Subject Property, at which time Mr. Williams “swapped out a breaker or two that was an incorrect type of breaker for the application.” Mr. Patronis was not clear whether an arc breaker was replaced with a ground breaker, or vice versa. Pool lights are sealed units. The light and its power cord come as a single unit. To replace a pool light, the main circuit breaker at the swimming pool sub-panel is turned off. The wires to the existing light are disconnected (unscrewed) from the circuit breaker. A lead is tied to the end of the wire. The light fixture is removed from the pool opening, and the wire is pulled through the existing conduit from the pool side. When the old fixture and wiring unit has been removed, the lead is removed from the end of the old unit’s wire, tied to the wiring of the new light, and drawn back through the conduit to the circuit breaker box. The new light is screwed into the fixture, and then energized by connecting the wires back into the existing circuit breaker. The point of connection of the light to the circuit breaker is the “load side” of the circuit. The experts who testified in this proceeding were all competent and qualified in their fields, and had served in leadership positions with the CILB (Mr. Weller, Mr. Del Vecchio, and Mr. Lenois), the Electrical Contracting Licensing Board (Mr. Tibbs), or the Florida Swimming Pool Association (Mr. Garner and Mr. Pruette). However, despite the relative simplicity of the statutes at issue, their opinions as to the allowable scope of work under a swimming pool contractor license were at odds. Respondent acknowledged, and the evidence in this case establishes, that electrical work associated with new pool construction is a task that is within the scope of work of an electrical contractor. Initial construction involves substantial work in bringing power from the main residential panel to the new pool panel, installing a junction box and circuit breakers, installing the wiring, and performing other electrical work of significantly greater complexity than that involved in the installation of equipment into a pre-constructed electrical system, which involves only the disconnect and reconnect of wires to the load side of a circuit breaker. As discussed by Mr. Lenois, a pool contractor can contract for the entire pool, but cannot self-perform the electrical components pursuant to section 489.113. As to the replacement of existing equipment, Petitioner’s experts testified that pool light fixtures differ from other pool-related equipment, e.g., pool pumps, in that the light fixtures have direct contact with the water, whereas other components do not. Lights are changed out in a submerged condition, which makes them extremely dangerous. As stated by Mr. Weller, “the whole area of electricity around pools gets complicated, between the bonding, the grounding, and all the other stuff.” It was Mr. Weller’s opinion that, although pool contractors can contract for pool light replacement, they cannot self-perform the work. Rather, the electrical work involved in replacing pool light fixtures should be subcontracted to an electrical contractor because “you can make mistakes in plumbing, and you can make mistakes in other areas, but with electricity, it's pretty non-forgiving, especially if you're around water.” Mr. Lenois distinguished pool lights, which he characterized as accessories since all pools do not have them, from pool equipment, which includes pumps and filters, heaters, specialty filters, and salt generators, which are mounted at the pump and filter area. Respondent’s experts were uniform in their opinions that the act of disconnecting and reconnecting pool lights, as well as other pool equipment, at the load side of a breaker does not constitute electrical contracting. Mr. Pruette testified that disconnecting and connecting a pool light at a circuit breaker is not a difficult or complex task, and can be easily performed with a little training. Mr. Del Vecchio testified that the disconnection and connection of pool lights at the circuit breaker is no different than that performed by a plumber in replacing a hot water heater, or an air-conditioning contractor in replacing a piece of air-conditioning equipment. Almost all of the experts either replaced pool lights as part of their routine scope of work or knew of pool contractors who did so, a practice that appears to be commonplace. Furthermore, several of the witnesses worked in areas of the state in which county building officials did not require permits, electrical or otherwise, for the replacement of pool lights, though the evidence in that regard was generally hearsay. Mr. Lenois, who testified on Petitioner’s behalf, stated his opinion that reasonable people could differ as to the meaning of the statutory language placing the “installation, repair, or replacement of existing equipment” within the scope of work of a pool/spa contractor. The issue of the extent to which electrical work is subsumed within the statutory scope of work of a pool/spa contractor of “installation, repair, or replacement of existing equipment” has been the topic of considerable discussion in the industry. In that regard, the Florida Pool and Spa Association has filed a Petition to Initiate Rulemaking with the CILB seeking, among other things, to “clarify[] the scope of a certified pool contractor’s license to include the installation, repair, and replacement of pool equipment, up to and including the electrical connection on the demand side of the power source.” There was no evidence as to the disposition of the petition. Respondent argued that Florida Administrative Code Rule 61G4-16.001(9), which establishes that five percent of the written certification exam for commercial pool/spa contractors is to cover “electrical work,” is evidence that electrical work is within the scope of work for a pool contractor. Electrical work associated with pool construction includes grounding for the pool shell itself. Thus, a degree of knowledge of basic electrical work and codes would be warranted, regardless of whether equipment electrical connections are within the scope of work for a pool/spa contractor. The parties introduced a series of DBPR-approved course outlines and instructor applications for a three-hour class, sponsored by the Florida Pool and Spa Association, entitled “Basic Electricity and the NEC [National Electric Code] for Swimming Pools,” and a one-hour class, sponsored by the Florida Pool and Spa Association, entitled “Basic Electrical Requirements for Pools.” The course outline prepared by the Florida Pool and Spa Association for each of the approved courses provides, in bold font, that: Instructor is aware that electrical work does not fall within the scope of work of licensed pool/spa contractors. No instruction on how to perform electrical work will take place. Course will provide much needed understanding of the basics of electricity as well as those aspects of the NEC as they pertain to pools and spas. Instructor will also emphasize the importance of using a licensed electrical contractor to perform required work.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED that the Construction Industry Licensing Board enter a final order finding that Respondent violated section 489.129(1)(o), Florida Statutes, as alleged in Count One; and sections 455.227(1)(o) and 489.129(1)(c), Florida Statutes, as alleged in Count Two, but only as that count pertains to the replacement of pool lights. It is further recommended that: Respondent be subject to a fine of $1,000 for a first violation of section 489.129(1)(o); Respondent be subject to a fine of $4,000, and that Respondent’s commercial pool/spa contractor licenses be subject to a period of probation for two years for a first violation of section 455.227(1)(o) and section 489.129(1)(c); and Respondent be required to complete an approved, live seven-hour continuing education course, in addition to any otherwise required continuing education, with an emphasis on chapter 489 and the rules enacted pursuant thereto. DONE AND ENTERED this 5th day of October, 2016, in Tallahassee, Leon County, Florida. S E. GARY EARLY Administrative 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 Filed with the Clerk of the Division of Administrative Hearings this 5th day of October, 2016.
Findings Of Fact Respondents, Marianne Goodman and Frank Beyo, are now licensed and were licensed on January 16, 1976 by the State of Florida, Division of Beverage, under license No. 13-97, Series 1-COP. This license allows for the consumption of beer on the premises. On January 16, 1976, several officers with the Division of Beverage arrived at the licensed premises to make a periodic inspection of that premises. They proceeded to make a search in the connection with their inspection of the bar area and the living quarters which is part of the same building. This premises is identified in Petitioner's Exhibit 3 admitted into evidence in its page 3. The premises is also identified in the course of Respondents' Exhibit 1 admitted into evidence. The diagram of the licensed premises shown in Petitioner's Exhibit 3 was as signed by the Respondent, Frank Beyo, and acknowledged by both Respondents, Frank Beyo and Marianne Goodman, on page 4 of the Petitioner's Exhibit 3. This diagram comports with the current floor plan in the premises. In searching, the officers found in the kitchen area certain bottles of wine which is delineated by number 4 on the Respondents' Exhibit 1. In addition, they found certain other bottles of liquor in the living room area and one bedroom area described as the front bedroom, and this location is delineated by number 4 on Respondents' Exhibit 1. There was no testimony offered by the officer or other witnesses that they had observed consumption of these alcoholic beverages, which were not beer, by any persons other than the vendor, his family, or guests. The Respondent, Frank Beyo, indicated that the various bottles of liquor which were full or partially full were for cooking purposes; private consumption by his wife, now deceased; consumption by his son or his personal consumption. Within a cabinet area in the kitchen, which location is identified by number 5 on Respondents' Exhibit 1, were found certain football parlay sheets. These parlay sheets had not been used, but were testified to by the officers as being paraphernalia used to bet on the outcome of football games. This testimony is unrefuted, although the witness indicated that the purpose he held these parlay sheets for was to use as scratch paper. Additionally, the officers found a cardboard backed set of sheets which were football pools and a baseball pool. These pools were designed for the placing of a bet with the proceeds going to the winner. This particular document was found in the bar proper and is identified as number 6 on Respondents' Exhibit 1. The Respondent, Frank Beyo, admitted participating in this betting pool as shown in Exhibit 6 but indicated that the "lions share" of the proceeds went for purposes of buying equipment for youth athletic teams. Petitioner's Exhibit 4, the items of liquor; Exhibit 5, the parlay sheets; and Exhibit 6, the football pools and baseball pool were admitted into evidence.
Recommendation It is RECOMMENDED, based on the violation as established in this cause, that the Respondents be fined in the amount of $400. DONE and ENTERED this 22nd day of November, 1976, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Lawrence D. Winson, Esquire Robert B. Staats, Esquire Division of Beverage 317 Magnolia Avenue The Johns Building Panama City, Florida 32401 Tallahassee, Florida 32304
Findings Of Fact At all times relevant to this case, Bennie L. Terry was the holder of license No. 26-2105, Series No. 2-APS, a license issued by the State of Florida, Division of Alcoholic Beverages and Tobacco, which allowed the sale of wine and beer for takeout, i.e., package sales only at the licensed premises in Jacksonville, Florida. A routine inspection was made of that premises on February 21, 1983, at 10:00 a.m. At that time, the license premises was open for business. Robert Terry, father of the licensee was in charge of the licensed premises on the date in question. In the course of the inspection, a 200 milliliter bottle of gin was found in a cooler which was located in the bar proper. In addition, other gin and whiskey was found in the living quarters of Robert Terry, which is found within the diagram description of the extent of the licensed premises. Gin and whiskey are spirituous liquors not allowed for sale under the terms of the license held by Respondent. By way of explanation, Respondent established that the whiskey and gin found in his father's bedroom was there for the benefit of a private club which held meetings in the licensed premises once a week. Respondent knew of the placement of the whiskey and gin in the bedroom and the conduct of the meetings and had allowed these matters to transpire. Subsequent to the date of the inspection, several other inspections have been conducted and no violations have been detected related to Respondent Terry's license.
The Issue abetting bookmaking on its licensed premises. If so, what disciplinary action
Recommendation Based on the foregoing, it is RECOMMENDED: That the charges against Rickey's Restaurant and Bar, Inc., be DISMISSED. DONE AND RECOMMENDED this 5th day of February, 1982, in Tallahassee, Florida. R. L. Caleen, Jr. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675
The Issue Whether the proposed repeal of Rule 61D-11.027, Florida Administrative Code, is an invalid exercise of delegated legislative authority because the repeal has the effect of creating or implementing a new rule or policy.
Findings Of Fact The Florida Legislature enacted Section 849.086, Florida Statutes, in 1996. The law authorized the establishment of “cardrooms” at licensed pari-mutuel facilities and dictated the parameters by which games may be conducted at such facilities. In essence, the cardrooms conduct games wherein the players compete against one another. The participants do not wager against “the house.” Instead, the house, that is, the pari-mutuel facility, conducts the games in a non-banking manner. This means the house does not have a financial interest in the outcome of the game(s). For purposes of this case, it is determined that the players who win share fractions of the “pot” created by the entry fees paid to participate in the game(s). The Petitioners in this cause are licensed facilities that have operated cardrooms. Each Petitioner holds a pari- mutuel wagering permit and a valid cardroom license. The Respondent is the state agency charged with the responsibility of administering Section 849.086, Florida Statutes (2005). Section 849.086, Florida Statutes, was amended in 2003 by Section 4, Chapter 2003-295, Laws of Florida. The 2003 amendment imposed a $2.00 bet limitation, with a maximum of three raises per round of betting. This change to the statute required the Respondent to revisit the rules governing cardrooms and, more specifically, the concept of poker “tournaments” being conducted at pari-mutuel facilities. To that end, and after extensive rule-making proceedings, the Respondent adopted rules that were incorporated in Florida Administrative Code Chapter 61D-11. The Respondent intended for the rules to address concerns regarding the $2.00 bet and raise limitations as well as how “re-buys” might affect or potentially allow a violation of such provisions. A “re-buy” describes when a card player is allowed to purchase more chips from the house during a game(s). Florida Administrative Code Rule 61D-11.027 was adopted on May 9, 2004. It was then challenged by pari-mutuel facilities who alleged the rule encompassed more than the statute authorized. Such challenge (DOAH Case No. 04-2950RX), was granted. The Final Order found that the rule (Florida Administrative Code Rule 61D-11.027(2)(a)) exceeded the Agency’s grant of rulemaking authority, modified the specific law implemented, and was arbitrary. Accordingly, the Final Order (DOAH Case No. 04-2950RX) determined that the rule violated Subsections 120.52(8)(b), (c), and (e), Florida Statutes. The Florida First District Court of Appeal affirmed the Final Order by a Per Curiam decision issued on October 28, 2005. Thereafter, the Respondent proceeded with the emergency repeal of the tournament rule in its entirety and issued an advisory letter to all cardroom license holders. The Respondent represented that it cannot reconcile the holding of the court with the explicit language of Section 849.086(8), Florida Statutes (2005). At the hearing, the Respondent represented that additional rulemaking will be necessary. The Respondent does not dispute that tournaments are permissible under the statute. Moreover, the parties agree that prior to the rule, repeal tournaments were conducted using tokens or chips that did not have value. Tournaments were played at licensed cardroom facilities during the period commencing in May 2004 through November 9, 2005. During that time (the period the rule was in effect) counties, cities, and the state received income from the monies remitted by the cardroom facilities. Additionally, the cardrooms employed persons to work the facilities to conduct the various games. After the repeal of the rule, revenues from the cardrooms decreased substantially. Similarly, the cardrooms did not need the number of employees as games were not being conducted. Tournaments at the St. Petersburg Kennel Club have not been conducted since January 17, 2006. From November 2005 through January 17, 2006, the tournaments at the St. Petersburg Kennel Club were conducted using chips or tokens that had “fractional value.” The “fraction” did not correspond to the entry fee charged for the tournament. It is not known whether or not re-buys during the tournaments were allowed. The Respondent issued a Memorandum to Pari-Mutuel General Managers at Cardroom Facilities and Cardroom Managers on January 12, 2006, that provided in part: In light of the recent ruling by the First District Court of Appeals, the Division’s administrative rules regarding tournaments have been repealed on an emergency basis, and are scheduled to be repealed permanently. The Division distributed a memorandum to all cardroom operators regarding Clarification of Cardroom Tournament Rules and Jackpots on November 9, 2005. The Division has also expressed on numerous occasions a serious concern of cardroom operators issuing chips in a fashion that does not represent an even value exchange for money in an attempt to circumvent the $2 bet and three raise limitation outlined in Chapter 849.086(8)(b), Florida Statutes. [Italics in original.] The November 9, 2005, Memorandum referred to in paragraph 14 above provided, in pertinent part: This memorandum is intended to clarify issues regarding the recent ruling by the First District Court of Appeals which affirmed an earlier ruling of the Division of Administrative Hearings (DOAH). The DOAH ruling found that various cardroom rules, which were challenged by Dania Jai Alai and Calder Race Course, are invalid. These rules addressed tournaments, jackpots, the Division’s approval of games, and gifts that enable play in an authorized game. As a result of the ruling, today the Division filed emergency rules to ensure that tournaments are played in compliance with the bet limitation of Section 849.086(8)(b), Florida Statutes. * * * The Final Order that was affirmed by the First District Court of Appeals invalidated the Division’s rules regarding entry fees, re-buys and single table tournaments. The judge held that tournament play is authorized by the cardroom statute. Therefore, cardrooms may set their own entry fees and allow re-buys in tournaments and hold single table tournaments. * * * Unauthorized activity, such as conducting wagering on tournaments that does not conform with the wagering restrictions found in Section 849.086(8)(b), Florida Statutes, or offering of jackpots or gifts that do not comply with the requirements that cardrooms be operated in strict conformity with the statute as required by Section 849.086(3), Florida Statutes, may result in disciplinary action. The memorandums identified above did not change or modify the Respondent’s position regarding whether tournaments are legal or permitted by the statute. To the contrary, the memorandums merely advised the cardroom facilities that they would be held to the statutory standard regarding wagering and that jackpots and gifts would be prohibited. Prior to the appeal of the rule, the Respondent routinely approved tournaments that were based upon the following scheme: A participant paid a $32 buy-in and paid the house $13 for the fee to conduct the tournament. Then the participant received a number of no-value chips that were used to play a multiple number of games of poker. At the end of the designated time, number of games, or whenever the designated end occurred (on the same day of play), winners were announced based upon the number of chips they held. Participants were “ranked” and awarded cash prizes from the pot of entry fees. The $32 entry fee was a mathematical calculation thought to assure that no participant would violate the statute’s bet and raise limitations. Whether or not the “all in” concept violated the statute was not considered as the chips were deemed to have no value in and of themselves. This “no value” chip was a fiction that the Respondent supported as, in theory, the $32 player buy-in comported with a mathematical calculation that was within the statutory guideline. The payouts were determined based upon the number of participants and were set by percentage with the first place person receiving the largest payout. Additionally, participants under the approved scheme were not allowed re-buys. That assured that all participants started with the same number of chips and had the same “betting” potential. Finally, winners were not paid or could not receive prizes outside the “pot” created by the entry fees. A nominal gift (such as a T-shirt) was not considered a violation. Prizes such as giant television sets or vacations were not acceptable. All winnings were to be paid from the buy-in fees and all buy-in fees were to be returned to the players in winnings.
The Issue The Administrative Complaint, as amended, in this case alleges that Respondent engaged in or permitted gambling activity on the licensed premises in violation of Sections 849.14 and 561.29(1)(a), Florida Statutes. The issue for resolution is whether that violation occurred and, if so, what discipline is appropriate.
Findings Of Fact Petitioner is the agency responsible for issuing licenses permitting the sale of alcoholic beverages in Florida and is responsible for enforcing the beverage laws, Chapters 561-568, Florida Statutes. Respondent is a Florida corporation holding alcoholic beverage license number 15-00185, series 4COP, which authorizes it to sell alcoholic beverages at retail at the licensed premises, Bottoms Up Bar, located at 8400 US-1, South, Micco, in Brevard County, Florida. Lynette Tummolo is the president of Bottoms Up Bar, Inc. Ms. Tummolo's first bar was a restaurant and liquor bar in Palm Bay, Florida: Duke's Place. She and Robert Bench owned the bar as 50/50 partners. Duke's Place was moved to a new location after a hurricane and in August 1996, Ms. Tummolo and Mr. Bench sold their license to David Oliver. In March 1997, Ms. Tummolo started another business, a beer and wine bar, which opened in Micco, Florida. The Articles of Incorporation dated February 19, 1997, and filed with the Secretary of State for Bottoms Up Bar, Inc., list the incorporator as Lynette Tummolo, and the members of the board of directors as Lynette Tummolo and Robert Bench. The most recent annual report, dated March 23, 1998, and filed with the Secretary of State, reflects that Lynette Tummolo and Robert Bench are both directors of the corporation. In June 1997, after David Oliver defaulted on his payments for the license, Lynette Tummolo purchased back the liquor license and had it transferred to Bottoms Up Bar, Inc. Ms. Tummolo applied to the Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco (DABT) and had approved, a transfer of the liquor license and change of location to Bottoms Up Bar in Micco. The application submitted by Ms. Tummolo lists herself as president and 60% stockholder, Robert Bench as secretary and 40% stockholder, herself as treasurer, and Robert Bench as director. A personal questionnaire form for Robert Bench is attached to Ms. Tummolo's application. This form states that Mr. Bench is the director/manager of Bottoms Up Bar and that he was investing no funds in the business. At the hearing in this proceeding, Ms. Tummolo stated that Robert Bench was not an owner or officer of the corporation Bottoms Up Bar, Inc., but the only reason she put him on the application form was that a staff person from DABT told her that she had to put officers of the corporation and had to show a percentage of stock. Ms. Tummolo's testimony is inconsistent with her sworn affidavit at the end of the form. The testimony is also inconsistent with any established policy of DABT. Ann (Annie) Raftery works as manager of Captain Hiram's, a restaurant and lounge in Sebastian, Florida, near Micco. She regularly patronizes Bottoms Up Bar and is a friend of Robert Bench. She also sometimes helps clean up at Bottoms Up Bar after closing. In January 1998, Ms. Raftery decided on her own to start a football pool for the Super Bowl. She drew the grid and collected $20 for each square on the grid representing a wager. Individuals placing a wager wrote their names or some identification on the square they selected. Ms. Raftery carried the grid sheet around with her on a plastic clip-board. On the Friday night before Super Bowl Sunday 1998, Annie Raftery arrived at Bottoms Up Bar around 10:30 p.m. She handed the football pool sheet on the plastic clip-board, for safekeeping, to Robert Bench, who was working as bartender. He stashed it behind the bar for her. On that same Friday, January 23, 1998, in response to a complaint, Sergeant Sam Brewer (at that time, a DABT special agent) commenced an undercover investigation of Bottoms Up Bar. Late that evening he and other agents entered the bar, mingled with the crowd, played darts, and socialized. At one point, Special Agent Brewer asked an individual whether she knew of any pools for the upcoming Super Bowl football game. She responded that he would have to talk to "the boss" and pointed out Robert Bench behind the bar. Agent Brewer then sat at the bar and started talking to Mr. Bench. During the course of the conversation, Mr. Bench reached next to the cash register behind the bar and handed a plastic clip-board with the football pool sheet to a female patron sitting at the bar. This individual looked at it and handed it to another woman, later identified as Annie Raftery. Annie Raftery then gave the clip-board to Lynette Tummolo. Agent Brewer asked Robert Bench about the pool and Bench replied that it belonged to Captain Hiram's. Mr. Bench then got Ms. Raftery and directed her to Agent Brewer. Agent Brewer conversed with Ms. Raftery about the pool. She had the clip-board again and explained how to place a wager. Agent Brewer selected a square and put the name, Steve B., on the grid and paid Ms. Raftery $20. She told him she would be at Captain Hiram's or Bottoms Up Bar on Sunday, and he left, as it was closing time. Agent Brewer returned on Sunday, around half-time of the Super Bowl. He approached Mr. Bench at the bar and asked where he could see the football pool sheet to check his numbers. Mr. Bench replied that they had copies, but Ms. Raftery had the original and pointed her out at the end of the bar. Ms. Raftery showed Agent Brewer the pool sheet and he confirmed that it was the one he had marked earlier. He then made a covert telephone call to the other agents waiting outside. They, and assisting officers of the sheriff's office, arrested Mr. Bench and Ms. Raftery. They retrieved $1,200 from Ms. Raftery's car and $440 from her home. The remainder of the $2,000 she collected had already been paid out for the first quarter of the game. Ms. Tummolo is at Bottoms Up Bar every night, seven nights a week. She remembers Friday, January 23, 1998, was particularly busy. At the hearing she described a plastic clip- board kept at the bar with a sheet on which the bartenders must record the liquor they remove from the back stockroom. Ms. Tummolo insists that if she had been seen with a clip-board, it would have been the liquor record and not a football pool. Agent Brewer saw Ms. Tummolo with the football pool, however, the night he placed his wager. Bottoms Up Bar does not participate in the Responsible Vendors Program. Ms. Tummolo meets regularly with her bartenders and, at least since the Super Bowl Sunday event, she reminds them that gambling in any form is not tolerated.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the agency enter its Final Order finding Respondent guilty of violating Sections 561.29(1)(a), Florida Statutes, and 849.14, Florida Statutes, and assessing a penalty of $250.00. DONE AND ENTERED this 19th day of November, 1998, in Tallahassee, Leon County, Florida. MARY CLARK 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 Filed with the Clerk of the Division of Administrative Hearings this 19th day of November, 1998. COPIES FURNISHED: Thomas D. Winokur, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007 Joe Teague Caruso, Esquire 800 East Merritt Boulevard Merritt Island, Florida 32954-1271 Richard Boyd, Director Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
