The Issue The issues for disposition in this case are whether proposed rules 61D-11.001(17) and 61D-11.002(5), Florida Administrative Code, which consist of the repeal of said rules, constitute an invalid exercise of delegated legislative authority as defined in section 120.52(8), Florida Statutes; and whether the Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering’s (Respondent), failure to prepare a statement of estimated regulatory costs constituted a material failure to follow the applicable rulemaking procedures or requirements set forth in chapter 120.
Findings Of Fact Respondent is the state agency charged with regulating pari-mutuel wagering pursuant to chapter 550, Florida Statutes, and cardrooms pursuant to section 849.086, Florida Statutes. Each Petitioner currently holds a permit and license under chapter 550 to conduct pari-mutuel wagering and a license under section 849.086 to conduct cardroom operations. Petitioners offer designated player games at their respective cardrooms. The rules proposed for repeal, rules 61D-11.001(17) and 61D-11.002(5), relate to the play of designated player games. Rule 61D-11.001(17) provides that “‘[d]esignated player’ means the player identified by the button as the player in the dealer position.” Rule 61D-11.002(5) provides that: Card games that utilize a designated player that covers other players’ potential wagers shall be governed by the cardroom operator’s house rules. The house rules shall: Establish uniform requirements to be a designated player; Ensure that the dealer button rotates around the table in a clockwise fashion on a hand to hand basis to provide each player desiring to be the designated player an equal opportunity to participate as the designated player; and Not require the designated player to cover all potential wagers. Both rules were adopted on July 21, 2014. Both rules list sections 550.0251(12), and 849.086(4) and (11) as rulemaking authority, and section 849.086 as the law implemented. Designated Player Games A designated player game is a subset of traditional poker games in which a designated player plays his or her hand against each other player at the table, instead of all players competing against each other. The term “designated player game” is used synonymously with “player banked games.”3/ However, a designated player is not a cardroom operator. In traditional “pool” poker games, each player bets into a central pool, with the winning hand(s) among all of the players collecting from the pool of bets, minus the cardroom rake. In designated player games, each player at the table makes an individual bet, and compares their hand against the designated player’s hand. If the player’s hand is better than the designated player’s hand, then the designated player pays the player from the designated player’s stack of chips. If the designated player’s hand is better than the player’s hand, then the designated player collects the player’s wager. At an eight- seat table, it is as though there are seven separate “player versus designated player” games. Designated player games were first played at the Ebro (Washington County Kennel Club) cardroom in 2011. The game, known as “double hand poker,” was demonstrated to Respondent, and subsequently approved for play. Though the internal control that describes the rules of game play was not offered in evidence, a preponderance of the evidence demonstrates that the game used a designated player. After Respondent’s approval of Ebro’s double hand poker, Respondent entered an order rescinding its approval due to concerns that the use of a designated player resulted in the establishment of a banking game. That decision was challenged, and subsequently withdrawn, with the result being that “Ebro may immediately resume play of Double Hand Poker as approved by the division.” In 2012, the Palm Beach Kennel Club cardroom began offering “tree card poker” with a designated player. Although tree card poker had been approved by Respondent, the designated player element had not. Thus, since the game was not being played in accordance with the approved internal control, it was unauthorized. Respondent investigated the playing of tree card poker at Palm Beach Kennel Club. A video demonstration was provided that showed two hands of tree card poker being played with a designated player. The video depicted a single designated player playing his hand against each other player at the table, and paying or collecting wagers based on each individual hand. After having reviewed the demonstration video, Respondent ultimately determined that the use of a designated player did not violate the prohibition against banking games as defined. The Adoption of the Designated Player Rules As requests for approval of internal controls for games using designated players became more common, Respondent determined that it should adopt a rule to establish the parameters under which designated player games would be authorized. On December 16, 2013, after having taken public comment at a series of rulemaking workshops, Respondent published proposed rule 61D-11.002(5) which provided as follows: 61D-11.002 Cardroom Games. * * * Card games that utilize a designated player that covers other players’ wagers shall: Allow for only one designated player during any single hand; Not require the designated player to cover all wagers that could be made by the other players in the game; Not allow other players to cover wagers to achieve winnings that the designated player could have won had he or she covered the same wagers; Not allow or require a player to buy in for a different amount than any other player in the game in order to participate as the designated player; and Rotate a button or other object to designate which player is the designated player. The button or other object shall rotate clockwise around the table to give each player the opportunity to participate as the designated player. On February 14, 2014, a challenge to the proposed rule was filed that objected to restrictions on the manner in which designated player games could be conducted. The rule challenge hearing was continued, and the case placed in abeyance pending negotiations between the parties. On March 14, 2014, Respondent filed a Notice of Change to the proposed rule 61D-11.002, which added the following provisions to proposed rule 61D-11.002: The designated player shall: Cover the table minimum for each participating player; and Pay each player an amount above the table minimum equal to their pro rata share of the pot in the event the designated player cannot cover all wagers. A public hearing on the changes to the proposed rule was held on May 8, 2014. As to the designated player provisions of the proposed rule, Respondent received the following comment: [I]f we could modify this . . . taking the existing paragraph 5 and come up with three new criteria, one being uniform requirements for a designated player included within the house rules; allowing for the dealer button to rotate on a hand-by-hand basis for qualified designated players; also, not requiring the designated player to cover all potential wagers, but nonetheless allowing the house rules to set a designated minimum buy-in amount or just a chip count. I think if we had those particular parameters, we would allow the preservation of this game to continue in its current fashion . . . . And . . . we’re going to avoid [] any argument that the department has somehow created a banked card game, because the biggest thing here is that we’re not requiring that the designated player meet all the theoretical payouts of the game. On May 19, 2014, written comments were submitted on behalf of several pari-mutuel facilities. Those comments included proposed language that is identical to the rule that was ultimately adopted, and included the following: Multiple jurisdictions have determined a key element to banked card games is the house requiring all wagers be covered. We propose this language to distinguish between lawful games and impermissible banked games. On June 9, 2014, Respondent filed a Notice of Change that adopted the industry’s proposed language, and changed proposed rule 61D-11.002 to its present form. On June 13, 2014, the challenge to proposed rule 61D-11.002(5) was voluntarily dismissed, and the case was closed. On July 21, 2014, rule 61D-11.002(5) became effective. There can be little doubt that Respondent understood that it was, by its adoption of rule 61D-11.002(5), recognizing player banked games in which a designated player plays his or her hand against each other player at the table. The rule is substantial evidence that, as of the date of adoption, Respondent had determined that designated player games did not violate the prohibition against “banking games” as that term is defined in section 849.086. Internal Controls Over the course of several years, beginning generally in 2011 and extending well into 2015, Respondent was presented with internal controls from cardrooms around the state for playing designated player games. Internal controls are required before a particular game may be offered, and describe the rules of the game and the wagering requirements. The internal controls submitted by the Jacksonville Kennel Club; the Daytona Beach Kennel Club; the West Flagler Associates/Magic City Poker Room; and the Naples/Ft. Myers Greyhound Track Cardroom, described games in which designated players played their hand against those of the other players at the table, and paid and collected wagers from the designated player’s chip stack based on the rank of the designated player’s hand against the individual players. The games described did not involve pooled wagers, and clearly described player banked games. Respondent approved the internal controls for each of the four facilities. The process of approving internal controls occasionally included the submission of video demonstrations of the games described in the internal controls for which approval was being sought. Approval of internal controls was never done without the review and assent of Respondent’s legal department or the division director. With regard to the rules of the designated player games that underwent review and approval by Respondent, “all of them are about the same, few differences.” From 2011 through mid-2015, Respondent approved internal controls for playing one-card poker, two-card poker, three-card poker, Florida Hold ‘Em, and Pai Gow poker using designated players at numerous cardroom facilities. A preponderance of the evidence establishes that Respondent was aware of the fact that, for at least several facilities, “eligible” designated players were required to meet minimum financial criteria, which ranged from a minimum of $20,000 in chips, up to $100,000 in chips. In the case of the Daytona Beach Kennel Club cardroom, internal controls called for a designated player to submit an application, agree to a background check, and submit a deposit of $100,000. Respondent approved those internal controls. DBPR Training In August 2015, Mr. Taylor was invited by the Bestbet cardroom in Jacksonville4/ to participate in a training session it was offering for its employees. Mr. Taylor is an investigator for Respondent, and visited the pari-mutuel facilities at least once per week. Mr. Taylor was invited by the facility to get an overview of how the cardroom games that had been approved by Respondent, including designated player games, were played. The games that were the subject of the training were substantially similar to those depicted in the April 2012 training video, and those he had observed during his weekly inspections. The designated player games for which training was provided had been approved by Respondent. In September 2015, training in designated player games was provided at Respondent’s Tallahassee offices to several of its employees. Mr. Taylor perceived the training “as an overview to give us an idea of what we are going to see.” Neither Mr. Taylor nor any other participant in the training offered any suggestion that the training was being provided in anticipation of a shift in Respondent’s practice of approving the internal controls for designated player games. Current Rulemaking On September 23, 2014, Respondent published a Notice of Development of Rulemaking. The notice cited 15 of the 30 subsections of chapter 61D-11 as being the subject areas affected by the notice, and provided that “[t]he purpose and effect of the proposed rulemaking will be to address issues discovered in the implementation and practical application of cardroom rules adopted on July 21, 2014.” There is nothing in the notice to suggest that Respondent had modified its position on designated player games, and its continued approval of institutional controls approving such games is strong evidence that it had not. On August 4, 2015, Respondent published a Notice of Meeting/Workshop Hearing for a rule workshop to be held on August 18, 2015. The Notice listed each rule in chapter 61D-11 as the “general subject matter to be considered,” including those related to games of dominos. Respondent asserted that it had “posted a version of amended cardroom rules that included the [repeal of rule 61D-11.005] on its website,” though such was not published, nor did Respondent provide a record citation in support of its assertion. On October 29, 2015, Respondent published its proposed amendments to chapter 61D-11. Rule 61D-11.001(17), which defines the term “designated player” as “the player identified by the button as the player in the dealer position,” was proposed for repeal. Rule 61D-11.002(5), as set forth above, which had established the standards for designated player games, was proposed for repeal. Rule 61D-11.005 was proposed for amendment to add subsection (9), which provided that “[p]layer banked games, established by the house, are prohibited.” On December 2, 2015, the Division held a public hearing on the proposed amendments. During the public hearing, Mr. Zachem made it clear that the intent of the proposed amendments was to change the Division’s long-standing and consistently applied construction of section 849.086 as allowing designated player games to one of prohibiting designated player games, and in that regard stated that: The rules pertaining to designated player games are now going to be correlated with the statute that is the prohibition against designated player games. The statute does not allow designated player games. There has to be a specific authorization for a type of game in statute, and there is none in 849.086 pertaining to designated player games . . . . When some of these definitions in other areas were created, I don’t think that the concept of what these games could even become was fathomed by the division. Given the process by which internal controls for designated player games were approved by Respondent, including written descriptions and video demonstrations of play, the suggestion that Respondent could not “fathom” the effect of its rules and decisions is not accepted. On December 11, 2015, Petitioners individually filed petitions challenging the validity of the proposed rules. The cases were consolidated and ultimately placed into abeyance pending efforts to resolve the issues in dispute. Agency Action Concurrent with Rulemaking After the December 2015 public hearing, and prior to the adoption of any amendments to chapter 61D-11, Respondent filed a series of administrative complaints against cardrooms offering designated player games. Those administrative complaints were very broadly worded, and reflected Respondent’s newly-developed position that designated player games constituted “a banking game or a game not specifically authorized by Section 849.086, Florida Statutes.” In that regard, Mr. Zachem testified that a cardroom could have been operating in full compliance with its Respondent-approved internal controls and still have been the subject of an administrative complaint.5/ The position of Respondent was made clear by Mr. Zachem’s statement that if a cardroom has an approved designated player game “where a banker is using their table, their dealer, their facility they [the cardroom] are establishing a bank.”6/ Thus, there can be little doubt that Respondent now construes section 849.086 to mean that player banked games constitute prohibited “banking games” because, by allowing the player banked game in its facility, the cardroom “establishes” a bank against which participants play. After the December public hearing, Ms. Helms was instructed that she was to no longer approve internal controls if they included provisions regarding designated players. That blanket instruction came with no conditions. Since that instruction, the internal controls for at least one facility have been disapproved, despite their being “about the same” as internal controls that had been previously approved for other facilities. Ms. Helms testified that after the December 2015 rule hearing, “things kind of turned around” with regard to Respondent’s position on designated player games. She then rethought her selection of words, stating instead that “things changed.” Given the totality of the evidence in this case, Ms. Helms’ statement that the position of Respondent towards designated player games “turned around” is the more accurate descriptor. Notice of Change On January 15, 2016, the Division published a Notice of Change/Withdrawal of proposed rules. Through the issuance of this notice, the Division withdrew proposed rule 61D-11.005(9). The proposed repeal of rules 61D-11.001(17) and 61D-11.002(5) remained unchanged. Since that notice of change, the preponderance of the evidence demonstrates that Respondent has stopped approving internal controls that propose the offering of designated player games, and has continued to take action against facilities that offer designated player games. Respondent’s statements and actions, including those made in the course of this proceeding, demonstrate that Respondent intends the repeal of rules 61D-11.001(17) and 61D-11.002(5), to effectuate the prohibition of designated player games despite the withdrawal of proposed rule 61D-11.005(9). Lower Cost Regulatory Alternative When it proposed the subject amendments to rule 61D-11 on October 29, 2014, Respondent had not prepared a statement of estimated regulatory costs. Rather, the notice of proposed rule provided that: The agency has determined that this rule will not have an adverse impact on small business or likely increase directly or indirectly regulatory costs in excess of $200,000 in the aggregate within one year after the implementation of the rule. A SERC has not been prepared by the agency. The agency has determined that the proposed rule is not expected to require legislative ratification based on the statement of estimated regulatory costs or if no SERC is required, the information expressly relied upon and described herein: the economic review conducted by the agency. Any person who wishes to provide information regarding the statement of estimated regulatory costs, or to provide a proposal for a lower cost regulatory alternative must do so in writing within 21 days of this notice. On November 19, 2015, in conjunction with the rulemaking process described above, a number of licensed cardroom operators, including some of the Petitioners, timely submitted a good faith proposal for a lower cost regulatory alternative (“LCRA”) to the proposed amendments to chapter 61D-11 that would have the effect of prohibiting designated player games, citing not only the creation of rule 61D-11.005(9), but the repeal of rule 61D-11.002(5). A preponderance of the evidence demonstrates that the LCRA indicated that the rule was likely to directly or indirectly increase regulatory costs in excess of $200,000 in the aggregate within one year after the implementation of the rule. The LCRA, as described in the letter of transmittal, also concluded that regulatory costs could be reduced by not adopting the proposed rule amendments, thus maintaining Respondent’s previous long-standing interpretation of section 849.086, and thereby accomplishing the statutory objectives. Respondent employed no statisticians or economists, and there was no evidence to suggest that any such persons were retained to review the LCRA. Though Mr. Zachem did not “claim to be an expert in statistics,” he felt qualified to conclude that the LCRA was “a bit of a challenging representation.” Thus, Respondent simply concluded, with no explanation or support, that “the numbers that we received were unreliable.” Respondent did not prepare a statement of estimated regulatory costs or otherwise respond to the LCRA. Respondent argues that its abandonment of proposed rule 61D-11.005(9), which was the more explicit expression of its intent to prohibit designated player games, made the LCRA inapplicable to the rule as it was proposed for amendment after the January 15, 2016, notice of change. That argument is undercut by the fact that Respondent did not amend its statement of estimated regulatory costs as a result of the change in the proposed rule. Moreover, the evidence is overwhelming that Respondent, by its decision to disapprove internal controls that included designated player games, and its enforcement actions taken against cardrooms offering designated player games, specifically intended the amendments repealing the designated player standards to have the effect of prohibiting designated player games. Thus, despite the elimination of the specific prohibition on designated player games, there was no substantive effect of the change. Therefore, the LCRA remained an accurate expression of Petitioners’ estimated regulatory costs of the proposed rule. Ultimate Findings Respondent has taken the position that the repeal of rule 61D-11.005(9) was undertaken “[f]or clarity with the industry.” That position is simply untenable. Rather, Respondent has taken an activity that it previously found to be legal and authorized and, by repealing the rule and simply being silent on its effect, determined that activity to be prohibited. By so doing, Respondent has left it to “the industry” to decipher the meaning and effect of a statute that is, quite obviously, ambiguous and in need of the interpretive guidance that has been and should be provided by rule. The evidence is conclusive that, by its repeal of rule 61D-11.002(5), Respondent simply changed its mind as to whether playing with a designated player constituted the establishment of a prohibited banking game.7/ It previously determined that such games were lawful under the terms of section 849.086; it has now determined they are not. Though there is substantial evidence to suggest that the reason for the change was related to the renegotiation of the Seminole Compact, the reason is not important. What is important is that Respondent has taken divergent views of the statute in a manner that has substantially affected the interests of Petitioners. For Respondent to suggest that its repeal of the rules is a clarification, a simplification, or a reflection of the unambiguous terms of the statute, and that Petitioners should just tailor their actions to the statute without any interpretive guidance from Respondent, works contrary to the role of government to provide meaningful and understandable standards for the regulation of business in Florida. Respondent cannot, with little more than a wave and well-wishes, expect regulated businesses to expose themselves to liability through their actions under a statute that is open to more than one interpretation, when the agency itself has found it problematic to decipher the statute under which it exercises its regulatory authority.
The Issue Whether Respondent's registration as a real estate salesman should be revoked for alleged violation of Section 475.25(2), Florida Statutes.
Findings Of Fact Respondent executed an application for registration as a real estate salesman on March 26, 1973, and filed the application with the Florida Real Estate Commission on April 2, 1973 (Petitioner's Exhibit 1). Question 9 on the application reads as follows: "9. Have you ever been arrested for, or charged with, the commission of an offense against the laws of any municipality, state or nation including traffic offenses, without regard to whether sentence has been passed or served, or whether the verdict or judgment has been reversed or set aside or not, or pardon or parole granted. Yes If yes, state details in full 1969 Convicted D.U.I Arrested for hindering police officer found not Guilty, Arrested for gambling Found not Guilty." Official records of the Dade County Public Safety Department reflect the following: On February 25, 1954, Respondent was arrested and charged with bookmaking. The charge was nolle-prossed on June 25, 1954 (Petitioner's Exhibit 7). On December 1, 1959, Respondent was arrested and charged with operating a gambling house, bookmaking, conspiring to violate gambling laws, and possession of gambling devices. The charges of operating a gambling house and bookmaking were dismissed on September 13, 1960 and no action was taken as to the other two charged (Petitioner's Exhibit 6). On May 17, 1963, Respondent was arrested and charge, with operating and conducting a gambling house, bookmaking, possession of gambling equipment and paraphernalia, and a traffic offense. The records reflect that the first three charges were not prosecuted and there is no showing of the disposition of the traffic offense (Petitioner's Exhibit 5). On April 26, 1969, Respondent was arrested and charged with vagrancy, possession of gambling paraphernalia, and possession of telephone slugs. The charges were dismissed (Petitioner's Exhibit 4). On June 16, 1972, Respondent was arrested and charged with hindering a police officer, and resisting arrest. On October 5, 1972, he was found not guilty of resisting arrest and there is no record of any further action taken with regard to the charge of hindering a police officer (Petitioner's Exhibit 2,3). Respondent testified that he had filled out the application form to the best of his ability and recollection at the time, and that he did not intend to deceive or conceal any of his prior arrests from the Real Estate Commission. He acknowledged that he should have indicated his gambling offenses in the plural in Question 9 of the application and that it was not his intention to show it in the singular. In support of this contention, he testified that he had filed a prior application for certification as a real estate salesman with the Commission about 1971, and that on that application he inserted the words "numerous gambling arrests" on Question 9. He felt that this fact, coupled with his admission on the 1973 application as to various offenses, would enable the Commission, when they checked his prior record, to obtain all relevant details concerning his prior criminal record. He further testified that he had never been convicted of gambling and that the charge of possessing gambling paraphernalia involved racing forms which were found in his motor vehicle. He further testified that he had not been arrested since 1972 and had never had any complaints during his six months of employment as a real estate salesman. Mr. Samen, an investigator for the Commission, testified that the Respondent had been very cooperative in his investigation of this case. He also stated that Respondent never indicated to him that he had filed a prior application for certification, and that the file of the Respondent had not reflected any previous application having been filed. Respondent acknowledged at the hearing that he had answered "No" to Question 14 on the 1973 application concerning whether or not he had previously filed any application for registration as broker or salesman in Florida which had not been granted, but that this was due to misreading the question. Pursuant to stipulation at the hearing, Mr. Fetner, Associate Counsel for the Commission, agreed to search the Commission records after the hearing to determine whether or not Respondent had filed a previous application and to submit a late-filed exhibit concerning this fact. By letter of November 21, 1975, Mr. Fetner provided evidence to the Hearing Officer that the Commission records did reveal that Respondent had taken an examination for registration as a real estate salesman in 1968 but had failed the same, and that this fact would establish that Respondent had filed a previous application for registration because the granting of approval to take an examination is predicated upon the applicant having filed an application for registration. The records of the Commission, however, indicated that the prior application filed by Respondent was destroyed in 1973, or prior thereto (Petitioner's Composite Exhibit 9). In view of the foregoing substantiation of Respondent's testimony as to the filing of a prior application, testimony that he had advised the Commission of numerous gambling arrests in Question 9 of that application is deemed to be credible and is accepted as a fact, there being no evidence submitted to the contrary.
The Issue The issues in this case are whether Respondent unlawfully conducted gambling operations at its licensed business establishment, and, if so, what penalty is warranted.
Findings Of Fact The Department is the state agency responsible for, inter alia, licensing and monitoring businesses licensed under the Florida Beverage and Tobacco laws. Department headquarters are in Tallahassee, Florida. Respondent is a duly-licensed business monitored by the Department. The business, known as Tubby's, is a small bar or pub that serves alcohol pursuant to its license. The business has five video games with names such as Stone Age, Cherry Master, and Haunted House. The games allow customers to accumulate points as they play. The points are then registered on a written slip of paper printed by the video game after each period of play. There are a number of video surveillance cameras in Tubby's which are used to monitor the hallway, bathroom, and bartenders. The bar has experienced trouble in the past with drug deals and installed the cameras to prevent such activities from re-occurring. One of the video cameras, the one pointed toward the video game area, was in fact not actually a working camera according to Tubby's representative.3 On October 19, 2007, two agents employed by the Department conducted an investigation of Tubby's to ascertain whether illegal gambling was going on in the establishment. Special Agent Michael Chandler sat at one of the video machines and played approximately $5.00 worth of currency. Upon completion, he had accumulated 4 points as evidenced by a game slip which printed from the machine. The game slip had the following information printed on it: "TUBBY'S GAME 1; NO CASH VALUE; 1/20/07 01:17:37 1404."4 Chandler gave the slip to the bartender, and it was placed on a red diary or log kept behind the bar. When the slip was later recovered by Chandler, his undercover name (Mike Boone) had been written on the slip. Also written across the top of the slip were the words, "Not Paid. Same guy as last night." Special Agent Robert Baggett also played one of the games. He played $30.00 worth of coins and won 100 points as indicated on his game slips.5 Baggett says another patron told him that he could get actual money for the slips, but that testimony was not confirmed by non-hearsay evidence. Baggett gave his slips to the bartender and asked what he could receive for them. This exchange between Baggett and his counsel at final hearing addressed what happened next: Q: And did the bartender do anything with the game slips? A: He asked me my name, and I gave him my alias. And he advised me that the scores will be tabulated at the end of the week, and that if I got the highest score my name would be placed on the electronic scoreboard that hung next to the bar area. Q: To your understanding, do the game slips have any value? A: Based upon my previous education, training and experience, these points are redeemable for monetary items. Because we have conducted several investigations in the past where we actually were paid out in the form of bar tabs or actual money. There was no mention by the bartender of cash payments being available for the game slips that Baggett acquired at Tubby's. In fact, in contrast to what Baggett had experienced in other investigations, this establishment specifically applied earned points to a non-monetary function, i.e., listing the winners' names on a game board. Based on their determination that illegal gambling was occurring, Chandler and Baggett seized a number of lottery tickets, a bank bag filled with cash, and the game slips from the log book. The cash was primarily twenty-dollar bills wrapped in bundles of $1,000 each for a total of $3,049.00. Each night, the Automatic Teller Machine (ATM) was replenished with cash. The register report produced at final hearing by Respondent clearly indicates a daily deposit of cash into the ATM. Goulet's testimony that the cash in the bank bag was used to replenish the ATM on site at Tubby's is credible. The game slips from customers were shredded or otherwise disposed of at the end of each week because there was no reason to keep them. This explanation is credible. The Department’s concern and position that the slips should be maintained in case some customer questioned his or her point total is speculative and not supported by the facts. Also confiscated from the establishment by Chandler and Baggett was a hand-written list of professional football teams. The list contained the first names or nicknames of 13 individuals, along with a statement of each player's record from the prior week. This sheet was obviously representative of some sort of football pool, but there is no evidence whatsoever that it was used for gambling purposes or involved the payment or exchange of money. The video camera in the gaming area of Tubby's was, as previously discussed, not a working camera. The game area was purposely set up by Tubby's management to look like a casino gambling area. This was meant to enhance the enjoyment of playing the video machines. Goulet testified that Tubby's is an alternative lifestyle bar and that its clientele is fairly regular, i.e., they see the same people over and over. Due to its location off the main thoroughfares, there are not a lot of folks who just drop in to the bar.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Business and Professional Regulation finding that Respondent, Rick's of South Florida, Inc., d/b/a Tubby's, is not guilty of conducting illegal gambling at its business site. Based upon the foregoing recommendation, it is further RECOMMENDED that Exhibits 5, 8, and 10 be returned to Respondent. DONE AND ENTERED this 29th day of May, 2008, in Tallahassee, Leon County, Florida. R. BRUCE MCKIBBEN 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 29th day of May, 2008.
The Issue This is a disciplinary proceeding in which the Petitioner seeks to take disciplinary action against the Respondent on the basis of alleged violations of Section 849.094, Florida Statutes, set forth in a two-count Administrative Complaint.
Findings Of Fact At various times during early 1993, the Respondent, Set-Tel Marketing, Incorporated (hereinafter "Set-Tel"), arranged through a marketing company in Florida by the name of MRG for certificates to be mailed to people in various other states. The certificates evidenced participation in a game promotion known as "Celebrate America." Set-Tel paid MRG an agreed amount for each certificate that was mailed with Set-Tel's name, address, and telephone number. The certificates arranged for through MRG were ultimately mailed by Celebrate America, a game promotion located in New York. The subject certificates offered prizes to the certificate holder. The total value of the prizes was greater than $5,000.00. The subject certificates stated that the certificate holder was guaranteed one of the five listed prizes, which ranged in value from a brand new automobile to a 27-inch color television. Set-Tel's name, address, and telephone number were displayed on the front of the certificates. No other telephone numbers appeared anywhere on the certificates. The fine print on the back of the certificates included the following information: "To enter the sweepstakes automatically and receive additional details on the sweepstakes prizes and the values offered, call the telephone number indicated on the reverse side." Inasmuch as Set-Tel's telephone number was the only telephone number on the certificates, all telephone calls from certificate holders seeking to enter the sweepstakes and obtain prize information were made to Set-Tel. When certificate holders would call, Set-Tel would try to sell vacation packages to them. Certificate holders who were only interested in sweepstakes and prize information were told to contact Celebrate America directly. The subject game promotion was not registered in Florida. Set-Tel did not have any liability insurance, bond, or trust account.
Recommendation Inasmuch as the Department of State lacks statutory authority to issue a final order imposing any penalty for violation of Section 849.094, Florida Statutes, it is RECOMMENDED that the Department of State issue a Final Order in this proceeding dismissing the Administrative Complaint in its entirety. DONE AND ENTERED this 29th day of March 1995 in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH 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 March 1995.
The Issue Whether Petitioner, the Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering, is authorized to charge and collect interest from Respondent, Florida Gaming Centers, Inc., on the unpaid value of the outsbook for the 1995-1996 meet from August 29, 1997, the date payment of the value of the outsbook was due, to September 8, 1998, the date payment was received by Petitioner.
Findings Of Fact At all times relevant hereto, the Respondent held a permit to conduct jai alai pari-mutuel wagering, under License No. 2909-D Amended, issued by the Department. Between July 1, 1995, and June 30, 1996, inclusive, Respondent held jai alai games for the purpose of conducting pari-mutuel wagering on those games. Respondent's meet for the relevant time period ended on June 30, 1996. One year and sixty days after the end of the State of Florida's (State) fiscal year of June 30, 1996, any "out" tickets that remained uncashed escheated to the State pursuant to Section 550.1645(2), Florida Statutes. Once these tickets or the value thereof escheated to the State, Respondent was required to pay the value of such tickets, as reflected on its outsbook, to the Department no later than August 29, 1997. Pursuant to the outsbook prepared by Respondent, the value of the outs for the 1995-1996 meet was $108,221.20. Nonetheless, Respondent failed to submit to the Department the value of the balance of the outsbook within the prescribed time frame and instead held these funds. On June 2, 1998, the Department served an Administrative Complaint on Respondent, alleging that Respondent had failed to timely submit the value of the outsbook to Petitioner. By letter dated September 4, 1998, Respondent submitted to the Department a check for $109,128.60 as payment for the unpaid value of Respondent's outsbook for the 1995-1996 meet. The Department received Respondent's payment on September 8, 1998. Of the total amount Respondent paid over to the Department, $108,221.20 was credited against the unpaid value of the outsbook for the 1995-1996 meet, resulting in full payment of the outstanding outsbook value. The remaining $907.40 paid by Respondent to Petitioner was an overpayment. Petitioner alleges that Respondent is responsible for interest accrued on the unpaid value of the outsbook for the period of time that amount remained unpaid. According to the Department, the interest owed by Respondent as a result of its failure to timely remit the value of the outsbook, "shall be determined at a rate per annum . . . equal to the State's average investment rate for the preceding month to the month for which interest is being calculated." The average interest rate earned on the investment of State funds as determined by the State Treasurer and/or Comptroller" for the time period of August 1997 through August 1998, was 6.73 percent. The Department determined that the interest "shall accrue on the unpaid aggregate principal amount due the State for the month(s) from the respective due date." Based on its calculations and after deducting Respondent's overpayment of $907.40, the Department asserts that Respondent owes the Department approximately $6,573.85 in accrued interest. Respondent disputes that the Department has authority to collect interest on the unpaid amount of the outsbook and alleges the powers of the Department under Section 550.0251, Florida Statutes, do not include such authority.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that (1) an administrative fine of $1,000.00 be imposed against the Respondent for the violation Section 550.1645, Florida Statutes; and, (2) Respondent shall receive a credit of $907.40 toward payment of the administrative fine. RECOMMENDED this 28th day of January, 1999, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD 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 28th day of January, 1999. COPIES FURNISHED: Deborah R. Miller, Director Division of Pari-Mutuel Wagering Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 William P. Cagney, III, Esquire 3400 Financial Center 200 South Biscayne Boulevard Miami, Florida 33131 Eric H. Miller, Esquire Chief Assistant General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 William Woodyard Acting General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
