The Issue The issue presented is whether Respondent is guilty of the allegations in the Administrative Complaint filed against him, and, if so, what disciplinary action should be taken against him, if any.
Findings Of Fact At all times material hereto, Respondent Clivalee Mundle was the holder of a slot machine occupational license issued by the State of Florida and numbered 7937616-1051. That license expired June 30, 2008, and has not been re-issued. At all times material hereto, Respondent was employed as a slot supervisor at The Isle Casino and Racing at Pompano Park, a licensed Florida pari-mutuel and slot machine facility located in Pompano Beach, Florida. On November 16, 2007, a senior attendant reported to the slot chip manager an incident involving Respondent. She reported that she had gone to the cage service window to use the computer. The cage is where the money is held in a casino. She reported that while she was there, Respondent came in and began assisting her. When he reached into his coat, a $100 bill fell out and onto the floor. She placed her foot next to the bill and asked Respondent if it were his. Respondent picked it up and acted, in her opinion, nervous. Employees at the casino are instructed to keep their own money in their wallets and to not have loose cash on them when they are on the casino floor. They are also instructed to keep any casino money in sight so that the money surveillance cameras can track it. Based upon the report he received, the slot chip manager contacted surveillance personnel and requested them to view the surveillance videos that recorded the incident. Upon doing so, those employees reported to him that Respondent had earlier obtained a $100 bill from the cage to pay out a jackpot on slot machine A-50-02 but that he subsequently never went to that machine to do so. Further, the videos showed that the jackpot on that machine had already been paid before Respondent obtained the $100 bill he obtained from the cage. Based upon that surveillance report, the slot chip manager viewed surveillance videos from prior dates. The review of the surveillance videos revealed the following transactions. On November 8, 2007, Respondent was at the cage service window filling out a paid-out cash slip to obtain a $100 bill when the slot chip manager came in. Rather than completing what he was doing, Respondent folded the form and put it in his pocket. Later that day, he turned in the paid-out slip and received a $100 bill. The form he filled out stated that he needed the money to settle a guest dispute. However, he never gave the money to anyone between the time he obtained it and the time he left the casino at the end of his shift. The surveillance videos for November 9, 2007, show Respondent filling out a paid-out slip at the cage, receiving a $100 bill, and concealing that bill inside a piece of paper in his coat pocket. The slip he filled out represented that he was obtaining the money for a guest dispute at machine A-15-05. Later that same day, he filled out another cage slip for a jackpot pay-out at machine A-50-08. When he received the $100 bill requested, he put it under a piece of paper on a clipboard. Surveillance videos showed that the jackpot on that machine had been paid out before Respondent obtained the $100. Surveillance videos did not show Respondent giving either of those $100 bills he obtained on November 9 to anyone in the casino. The videos show that on November 13, 2007, Respondent paid a jackpot to a customer who then gave Respondent her player's card. Respondent took her player's card to the player's card window, had a discussion with the attendant, and then returned to the player and returned her card. He then went to the cage service area, filled out a cage paid-out slip for $100 for guest satisfaction, placed the $100 underneath papers on a clipboard, and left the cage area. Between that time and the end of his shift, Respondent did not give that money to anyone. None of the monies Respondent obtained from the casino cage as described in the above Findings of Fact was used for a legitimate business purpose. Respondent failed to complete the transactions for which he allegedly received the monies. Rather, Respondent retained these monies for his own use. Respondent admits to dropping the $100 bill on November 16, 2007. His explanation is that he had previously left the casino and had picked up some relatives and taken them to his home. He stated that the $100 bill was given to him by one of those relatives so he could pick up formula and diapers on his way home. The surveillance videos do not show Respondent leaving the casino or returning prior to the incident. On November 29, 2007, Respondent was terminated from his employment by the casino. On February 7, 2008, The Isle Casino and Racing at Pompano Park issued to Respondent a Notice of Barrment [sic], which barred Respondent from the premises of the casino permanently.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered (1) finding Respondent guilty of the allegations in the Administrative Complaint filed against him, (2) excluding Respondent from all facilities of all slot machine licensees in the State of Florida, and (3) finding Respondent ineligible for a slot machine occupational license. DONE AND ENTERED this 11th day of February, 2009, in Tallahassee, Leon County, Florida. S LINDA M. RIGOT 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 11th day of February, 2009. COPIES FURNISHED: Clivalee Mundle 4689 Northwest 22nd Street Coconut Creek, Florida 33063 David Perry, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 40 Tallahassee, Florida 32399-2202 Ned Luczynski, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street, Suite 40 Tallahassee, Florida 32399-2202 David J. Roberts, Director Division of Pari-Mutuel Wagering Department of Business and Professional Regulation 1940 North Monroe Street, Suite 40 Tallahassee, Florida 32399-2202
The Issue The central issue in this case is whether the Respondent is guilty of the violations alleged in the Emergency Order of Suspension; and, if so, what penalty should be imposed.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, the following findings of fact are made: At all times material to this matter, the Respondent, Robert L. Seamans, held alcoholic beverage license no. 23-00987, series 4-COP, for the licensed premises located at 11425 S.W. 40th Street, Miami, Dade County, Florida, known as the Lucky Lady. Respondent, age 64, has held alcoholic beverage licenses in the states of New York or Florida since 1963. Respondent has never been charged or reprimanded for a beverage law violation until these proceedings. At all times material to this case, the Respondent employed a barmaid at the Lucky Lady who was known as "Stella." Also present at the Lucky Lady during relevant time periods was a drifter known to the bar patrons as "Tom". In exchange for food and/or the use of the bar kitchen, Tom assisted the barmaids by carrying out trash, stocking the beer cooler, or filling the ice bins. Although Tom was not an employee at the Lucky Lady, he, like many of the regular patrons, had unrestricted use of the Lucky Lady's kitchen area. Sometime prior to April, 1990, a bar located near the Lucky Lady was closed by the Department following an investigation and a determination that controlled substances were being either sold or possessed on the licensed premises. Respondent was aware of the action taken to close the local bar and was further aware that undesirable persons from that bar might attempt to patronize the Lucky Lady. Respondent had considered joining the Department's Responsible Vendors Program but did not. Respondent's policy was to exclude any customer suspected of improper conduct whether related to drugs or other inappropriate activities. To effect that policy Respondent maintained a "barred" list which listed those individuals either by name or description who were not welcome at the Lucky Lady. Employees were instructed to request any person on the barred list to leave the facility. In the event such person refused, the police were to be summoned. On numerous occasions not described below, patrons of the Lucky Lady have observed Respondent escorting persons from the bar who were suspected of, or were known to have exhibited, improper conduct. Respondent relied on his wife, Tanya, to assist him to monitor the interior areas of the Lucky Lady. It was Mrs. Seamans' custom to remain in the licensed premises throughout the evening hours and to watch for any improper conduct. If she observed anything suspicious, she would either report the activity to her husband or to an employee for further investigation and/or action. Unfortunately, Mrs. Seamans sustained a broken hip on April 29, 1990, and was unable to supervise the licensed premises after that date. The Respondent did not obtain a replacement to perform Mrs. Seaman's monitoring function. During May, 1990, Vincent Weiner, a law enforcement investigator employed by the Department, conducted an undercover narcotics investigation of the Lucky Lady. To effect his purpose, Mr. Weiner assumed the name "Vinnie Capio" and began to patronize the licensed premises. On May 5, 1990, Mr. Weiner and a confidential informant went to the Lucky Lady and asked Stella if cocaine were available. Stella directed the two men to the restroom. Once there, they proceeded to complete the transaction with Tom based upon the price which had been negotiated with Stella ($25.00). On this occasion, in exchange for the $25.00, Mr. Weiner received a clear baggie containing a substance which was later analyzed and found to be cocaine. On May 8, 1990, Mr. Weiner returned to the Lucky Lady and again inquired if cocaine were available for purchase. On this date, Stella went to the kitchen and returned with a packet which was exchanged with Mr. Weiner across the bar counter for $25.00. This packet was later analyzed to be cocaine. At all times when Mr. Weiner was seated at the bar counter, other patrons were also present at the counter during the course of the transactions. Mr. Weiner attempted to make a second purchase of cocaine on May 8, 1990. Similar to the prior transaction of that date, Stella went to the kitchen but returned with a written message for Mr. Weiner which she handed to him (instead of another packet). Tide message stated, "he's OUT he got rid of all of them already." Stella did not identify the "he" noted in the message. On May 15, 1990, Mr. Weiner purchased two packets of cocaine at the Lucky Lady. During the first transaction, Stella advised Mr. Weiner to enter the kitchen where he met Tom. Tom then took a packet from an envelope on the kitchen shelf and exchanged it for $25.00. Later in the evening, Mr. Weiner gave $25.00 to Stella while Tom removed another packet from the envelope and handed it to the investigator. This second exchange also took place in the Lucky Lady kitchen. Both of the packets purchased on this date were later analyzed and found to be cocaine. On May 18, 1990, the investigator returned to the Lucky Lady and purchased two packets from Stella and Tom. Again, the exchange took place within the kitchen and the amount for these transactions totalled $50.00. The substance obtained on this date was later analyzed and found to be cocaine. On May 22, 1990, Mr. Weiner was seated at the bar when Stella asked him if he would be needing anything that evening. The investigator placed $25.00 on the bar while Stella went to her purse (located behind the bar counter) and retrieved a packet which she then exchanged for the money. This transaction took place in front of the other patrons seated at the bar. Later in the evening, in the same manner as described above, Mr. Weiner purchased a second packet from Stella. Both of the packets obtained on this date were later analyzed and found to be cocaine. On May 29, 1990, Stella was again behind the bar at the Lucky Lady. On this date, Mr. Weiner negotiated for one packet (which she obtained from her purse located within the bar area) in exchange for $25.00. This packet was later analyzed and found to be cocaine. The Respondent was present within the premises at the Lucky Lady during at least one of the transactions described above. There is no evidence that Respondent was personally involved in the exchanges nor that he was aware of the sales. The Respondent does not dispute that the substance purchased by Mr. Weiner on each of the occasions described above was cocaine. During the course of the investigation Mr. Weiner observed video poker games located within the licensed premises. The games were coin operated and required the player to choose a hand for five card draw poker. By discarding any or all of his original hand, the player attempts to, by the chance of the game, receive a winning hand. The game awards points for Winning hands and subtracts points for losing hands. If a player accrues more points than he paid for, he finishes ahead of the machine. On May 22, 1990, Mr. Weiner finished playing the video poker game with a total of 36 points. That total was 16 more than he had originally purchased. Mr. Weiner consulted Stella regarding the results and she wrote his name and the point total on a piece of paper which she then placed near the cash register. On May 23, 1990, Mr. Weiner returned to the Lucky Lady and requested his "mail." He intended to obtain his winnings related to the video game he had played the day before. He received $9.00 which he believed was the amount he was due for accruing the 36 points. No other explanation as to why Mr. Weiner would receive $9.00 from the bar (except in connection with video game results) was suggested by either party. On May 31, 1990, an Emergency Order of Suspension was executed by the Director of the Division of Alcoholic Beverages and Tobacco. That order was served on the Respondent on June 1, 1990, and the licensed premises have been closed since that time. On June 1, 1990, an inspection of the Lucky Lady premises was conducted by agents of the Department. The Respondent had keys to the video poker games described in Paragraphs 16 and 17.
Recommendation Based on the foregoing, it is recommended that the Department of Business Regulation, Division of Alcoholic Beverages and Tobacco enter a final order revoking the Respondent's alcoholic beverage license no. 23-00987, series 4-COP, for the premises located at 11425 S.W. 40th Street, Miami, Dade County, Florida. RECOMMENDED this 17th day of July, 1990, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of July, 1990. APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-3447 RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE DEPARTMENT: Paragraphs 1 through 3 are accepted. To the extent the drug transactions are outlined in findings paragraphs 7 through 13, the Department's paragraphs 4 through 12 are accepted; otherwise rejected as irrelevant. To the extent the video poker games are addressed in findings paragraphs 16 and 17, the Department's paragraphs 13-15 are accepted; otherwise rejected as irrelevant. Paragraphs 16 through 18 are accepted. But see also finding paragraphs 3 and 4. Except as addressed in finding paragraph 2, paragraph 19 is rejected as irrelevant. Paragraph 20 is accepted. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE RESPONDENT: Paragraphs 1 through 3 are accepted. Paragraph 4 is rejected as irrelevant, comment or argument not constituting a factual finding. Paragraph 5 is rejected as recitation of testimony. The video poker games were games of chance in that the machine, of its own design (not a player's choosing) dictated the hand received by the player. Paragraphs 6 through 9 are accepted. It is accepted that Respondent did not personally engage in the illegal sales recounted in the order; otherwise, paragraph 10 is rejected a irrelevant, argument or comment. Paragraphs 11 and 12 are accepted. COPIES FURNISHED: Henry A. Amoon Continental National Bank Building Suite 408 400 Southwest 107th Avenue Miami, Florida 33174 John B. Fretwell Assistant General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007 Stephen R. MacNamara Secretary Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000 Leonard Ivey, Director Division of Alcoholic Beverages and Tobacco Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1000 Joseph A. Sole General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1000
Recommendation Based on the foregoing findings of fact and conclusions of law, it is Recommended that respondent be found guilty of violating Subsection 562.12(1), Florida Statutes, and that she be given a $100 fine to be paid within fifteen days after the entry of a final order in this cause. DONE and RECOMMENDED this 28th day of October, 1983, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of October, 1983. COPIES FURNISHED: James N. Watson, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Irene B. Wright 1655 East 21st Street Jacksonville, Florida 32206 Gary R. Rutledge, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Howard Milan Rasmussen, Director Division of Alcoholic Beverages and Tobacco 725 South Bronough Street Tallahassee, Florida 32301
The Issue The central issue in this case is whether Respondents are guilty of the violations alleged in the Amended Notice to Show Cause; and, if so, what penalty should be imposed.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, I make the following findings of fact: At all times material to the allegations in the Amended Notice to Show Cause, Respondents, Julio and Lida Diaz, d/b/a Flor-Lidita Restaurant, held alcoholic beverage license number 23-4636. This license was a 2-COP license which authorized the sale of beer and wine for the premises known as Flor-Lidita Restaurant which is located at 4762 N. W. 183rd Street, Miami, Florida. In July, 1986, the FDLE began an investigation concerning an illegal gambling lottery commonly known as "bolita" which was believed to be operating in connection with the Flor-Lidita Restaurant. The investigation undertaken involved a surveillance of the restaurant together with undercover agents who were used to frequent the restaurant for the purposes of observing activities and placing bets with the restaurant personnel. An individual identified as Rafael Rosquete was determined to be a courier who would enter the restaurant, collect the gambling paraphernalia and returns, and deliver the items to a home located in Broward County. On July 9, 1986, a police officer, Hector Zeno, working undercover in connection with the FDLE, entered the Flor-Lidita Restaurant and observed customers writing numbers on bolita slips. Officer Zeno also observed individuals placing bets with the owner, Julio Diaz. In turn, Zeno filled out a bolita slip and placed a $5.00 bet with the owner Julio Diaz. On July 16, 1986, Joyce Dawley and Jacqueline Sirven entered the Flor- Lidita Restaurant and observed customers placing bolita bets with the Respondents, Lida and Julio Diaz. These agents also observed another employee known to them as "Rolando" (later identified as Rolando Nunez) taking bets. Agents Dawley and Sirven placed $5.00 bets with Julio Diaz on this date and received carbon copies of their bolita slips. On July 22, 1986, Zeno returned to the restaurant for the purpose of observing the customers and again placed a $5.00 bet by completing a bolita slip and tendering money to Julio Diaz. During this visit Zeno observed Nunez and Lida Diaz taking money and bolita slips from other customers within the restaurant. On July 23, 1986, Dawley and Sirven returned to the restaurant and again placed two $5.00 bets with Julio Diaz. During this visit the agents observed other individuals inside the licensed premises place bets with Rolando Nunez and Lida Diaz. On July 24, 1986, Dawley and Sirven returned to the Flor-Lidita Restaurant for the purpose of picking up $70.00 in winnings which Agent Dawley was entitled to as a result of the bet she had placed the previous evening. On July 30, 1986, Dawley and Sirven went to the Flor- Lidita Restaurant and again placed two $5.00 bets. This time Lida Diaz took their money and the original bolita slips and gave them carbon copies of their bets. On July 31, 1986, Sirven entered the Flor-Lidita Restaurant for the purpose of receiving $70.00 in winnings based on the prior day's bolita bet. On August 6, 1986, Dawley entered the Flor-Lidita Restaurant, received a bolita pad from Rolando Nunez and placed a $5.00 bet with Nunez in the present of Julio Diaz. On this visit Nunez showed Dawley a ledger which contained a list of dates together with numbers which indicated the winning numbers for the dates in question. On August 11, 1986, Dawley went to the Flor-Lidita Restaurant and observed Lida and Julio Diaz receiving bolita bets from persons within the restaurant. Dawley also observed Rolando Nunez taking bets. Dawley placed a $5.00 bet with Nunez on this date. After receiving a search warrant for the Flor-Lidita Restaurant, special agents of the FDLE entered the licensed premises on August 12, 1986 and searched the restaurant. During the search, agents took possession of various items of gambling paraphernalia which included bolita betting slips, Puerto Rican lottery tickets, blank bolita pads, currency and ledger books. Over $40,000 worth of U.S. currency and gambling paraphernalia was confiscated in connection with the police raid on the restaurant and the house in Broward County. In connection with the search of the licensed premises, Joseph Ogonowski seized an open bottle of scotch whiskey which was behind the counter at the restaurant. The scotch was not listed on the menu as a designated ingredient for any of the food items available for purchase at the restaurant. During the period of surveillance of the Flor-Lidita Restaurant, Rosquete was repeatedly observed by FDLE agents. Rosquete would routinely visit the restaurant, obtain items of gambling paraphernalia including betting slips and U.S. currency, and deliver the proceeds from the restaurant to a residence located in Broward County. The gambling activities conducted on the licensed premises were open, frequent, and included the active participation of the Respondents, Julio and Lida Diaz.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Department of Business Regulation, Division of Alcoholic Beverages and Tobacco enter a Final Order revoking license number 23-4636, series 2-COP, held by Respondents, Julio and Lida Diaz, d/b/a Flor-Lidita Restaurant. DONE and RECOMMENDED this 15th day of July, 1988, in Tallahassee, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 Filed with the Clerk of the Division of Administrative Hearings this 15th day of July, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-4620 Rulings on Petitioner's proposed findings of fact: Paragraphs 1 and 2 are accepted. With the exception of the last sentence paragraph 3 is accepted. The last sentence is rejected as speculation. Paragraph 4 is accepted. Paragraph 5 is accepted. Paragraphs 6-20 are accepted. With the exception of the last sentence in paragraph 21, which is rejected as speculation, paragraph 21 is accepted. Paragraphs 22-23 are accepted. The last two sentences of paragraph 24 are accepted. The first sentence is rejected as argument or a conclusion of law. Rulings on Respondent's proposed findings of fact: Paragraphs 1-3 are accepted. Paragraphs 4 is rejected as contrary to the weight of the evidence. Mr. Ogonowski was qualified to and did identify the substance seized as scotch whiskey. Paragraph 5 is accepted but is unnecessary to the determinations reached by this Recommended Order. Paragraph 6 is rejected as irrelevant, immaterial and unsupported by the record in this cause having previously ruled the adjudications inadmissible. Paragraph 7 is rejected as unsupported by the record in this cause. COPIES FURNISHED: Katherine A. Emrich, Esquire Assistant General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007 Rene Valdes 1830 N. W. 7th Street Miami, Florida 33125 Daniel Bosanko, Director Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000
Findings Of Fact Petitioner, Carolyn K. Peterson, entered a drawing held by Respondent, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco (Division), on September 12, 1984, for priority entitlement to apply for one of thirteen new quota alcoholic beverage licenses to be issued for Seminole County. Peterson initially was not successful, having been ranked 15. Later, three applicants selected in the September 12 1984, drawing failed to qualify or file a proper application. By letter dated January 25,1985, the Division notified Peterson that her ranking now entitled her to apply For licensure. The January 25, 1985, letter informed Peterson "you must file a full and com- plete application within 45 days of the date of this letter pur- suant to Rule 7A-2.17, Florida Administrative Rule." The letter also notified Peterson: "Failure to file your complete application within such 45 day period will be deemed a waiver of your right to file for the new quota license." The Division consistently follows Rule 7A-2.17. On February 4, 1985, Peterson and her husband went to the Division's Orlando office to inquire concerning application for licensure. Peterson's husband, who had experience in applying for quota alcoholic beverage licenses, inquired whether it was necessary to jump through the procedural hoop of having a location selected and reflected in the application only to put the resulting license in escrow while seeking a more suitable license location within 180 days. The Division's representative, former employee Carolyn Thompson, responded that applicants no longer had to jump through that procedural hoop but could leave the designation of the location of the license blank on the initial application so long as a suitable location was selected and the application updated within 180 days. Thompson partially typed the application forms for Peterson, duplicated them so that Peterson could file the completed application in duplicate as required, and kept a copy for the Division's files. Thompson also gave Peterson, and kept a copy of, an instruction form for completion of Peterson's application. Thompson did not explicitly tell Peterson or her husband that Peterson could file the completed application after the expiration of the 45 day time limit. The Petersons confused the 45-day deadline for filing a full and complete application with the 180-day deadline for obtaining an appropriate location and zoning approval. As a result, the Petersons misunderstood and believed that the application was not required to be completed and filed within 45 days. After the February 4, 1985 meeting, the Petersons inquired about the process of finding a suitable location with suitable zoning. Meanwhile, they let the 45-day time limit ex- pire without filing a full and complete application.
Recommendation Based on the foregoing Findings Of Fact and Conclusions Of Law, it is RECOMMENDED that Respondent, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, deny the application of Petitioner, Carolyn K. Peterson, for a quota alcoholic beverage license. RECOMMENDED this 9th day of May, 1986, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of May, 1986. COPIES FURNISHED: Ms. Carolyn K. Peterson 797 Pinetree Road Winter Park, Florida 32789 Thomas A. Klein, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Thomas A. Bell, Esquire General Counsel. Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Howard M. Rasmussen, Director Division of Alcoholic Beverages and Tobacco 725 South Bronough Street Tallahassee, Florida 32301 James Kearney, Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 APPENDIX To the extent Petitioner's written final argument contains proposed findings of fact, they are rejected as contrary to the greater weight of the evidence and the Findings of Fact. Respondent's proposed findings of fact 1 through 5 are accepted, but 4 is subordinate and 5 is unnecessary.
The Issue The factual issues in this unadopted-rule challenge relate to whether Respondent, in connection with the administration of the state’s gaming laws, has formulated statements of general applicability that have the effect of giving each slot machine licensee the rights (i) to maintain and operate an outdoor live gaming facility for the conduct of pari-mutuel wagering activities, wherein slot machine gaming areas could not lawfully be located, so long as its slot machines are housed elsewhere, in an enclosed building; and (ii) to locate slot machine gaming areas in a separate, stand-alone building having no integral systems, structures, or elements, provided the building is located on the same parcel, and on the same side of the street, river, or similar obstacle, as the live gaming facility. If Respondent has developed such a statement or statements, then the ultimate issue is whether such statements meet the statutory definition of an unadopted rule.
Findings Of Fact PARTIES SCF is a Florida corporation whose principal place of business is located in Marion County. SCF has been in the business of breeding thoroughbred racehorses since 1996. The company also owns racehorses and, as an owner of racing animals, holds a Pari-Mutuel Wagering Business Occupational License, #PBU476648, from the Division. See § 550.105(2), Fla. Stat. As a licensed business owning racing animals, SCF is under the regulatory jurisdiction of the Division. In the three years preceding this action, SCF’s horses won approximately $120 thousand in purses from performing in race meets held at Florida pari-mutuel facilities.1 1 Although SCF is a licensed owner of racing animals, it is not a member of the Florida Horsemen’s Benevolent and Protective Association, Inc. (the “FHBPA”), a nonprofit corporation that advocates in support of Florida’s thoroughbred racing industry and represents the interests of the licensed owners and trainers who comprise its membership. This fact is relevant only to the question of whether SCF is precluded from maintaining this action, under the doctrine of administrative finality, by the Final Order entered in a case brought by the FHBPA in 2018 to challenge agency statements, similar to those at issue here, which the association alleged—but ultimately failed to establish—were unadopted Continued on next page... The Division is the state agency responsible for implementing and enforcing Florida’s gaming laws. It licenses and regulates pari-mutuel and slot machine gaming activities in Florida, as well as the professionals and businesses, such as SCF, that supply necessary goods and services to the gaming economy. The only places in Florida, in fact, where SCF’s thoroughbreds can legally perform in races upon which bets may be made are the several permitted pari-mutuel facilities, which are also subject to the Division’s regulatory jurisdiction; such tracks comprise the exclusive medium for live gaming activities. Calder is the holder of a pari-mutuel wagering permit and, in that capacity, owns a track called Calder Race Course, also known as Gulfstream Park West. As a permitholder, Calder must apply for an annual license to conduct pari-mutuel operations. See § 550.0115, Fla. Stat. This annual license gives the permitholder authority to conduct the pari-mutuel wagering activity authorized under its permit on the dates identified in the license. At all times relevant to this case, Calder has held a license to conduct thoroughbred horseracing performances, and SCF-owned horses have raced at Calder Race Course. In addition to its license to conduct pari-mutuel operations, Calder has held, at all times relevant hereto, a license to conduct slot machine gaming. SLOT MACHINE GAMING In 2004, voters approved an amendment to the Florida Constitution, which opened the door to the installation of slot machines at licensed pari- mutuel facilities in Miami-Dade and Broward counties. See Art. X, § 23, Fla. Const. During its next regular session, the legislature enacted chapter 551 to implement the constitutional amendment. Under the original definition of rules. For reasons discussed much later in this Final Order, the undersigned concludes that the previous Final Order, while favorable to the Division on similar issues, is not a bar to SCF’s claims in this proceeding, because SCF was neither a party to the FHBPA case, nor in privity with the FHBPA. “eligible facility” set forth in section 551.102(4), seven pari-mutuel permitholders potentially qualified for slot machine licensure; a later statutory amendment increased that number to eight. A slot machine license may be issued only to a permitted pari-mutuel facility. That is, to become and remain a slot machine licensee, an eligible facility must operate a pari-mutuel facility in accordance with the provisions of chapter 550, Florida Statutes. So, as a condition of initial slot-machine licensure, a permitholder must demonstrate its compliance with chapters 551 and, as applicable, chapter 550. § 551.104(4), Fla. Stat. To renew, which must be done annually, a slot machine licensee must “[c]ontinue to be in compliance with” chapter 551; “[c]ontinue to be in compliance with chapter 550, where applicable[;] and maintain [its] pari-mutuel permit and license in good standing pursuant to the provisions of chapter 550.” Id. In short, slot machine gaming is secondary to pari-mutuel wagering operations because it cannot exist, lawfully, in the absence of such operations. This means, among other things, that an applicant for a slot machine license is required to have a “current live gaming facility,” in which pari- mutuel wagering occurs in the physical presence of real-time races or games, and that a live gaming facility (“LGF”) must be maintained at the permitholder’s pari-mutuel facility during the life of the slot machine license, if issued. See § 551.114(4), Fla. Stat. In 2005, when chapter 551 was enacted, all seven of the facilities initially eligible for slot machine licensure had large existing grandstands or other buildings that created indoor, conditioned spaces; these “conditioned environments,” in other words, were separated from the outdoor elements and conditions (wind, rain, heat, cold, etc.) by sheltering walls and roofs. Simply put, each of these facilities had a building envelope or exterior shell and, thus, each such facility fell within the definition of a “building” under the common usage of that term. It is reasonable to infer, if not presume, that when section 551.114(4) was being written, the legislature, or at least the drafters of the legislation who coined the term “live gaming facility,” had in mind the buildings then currently in use as “live gaming facilities” at the relatively few eligible facilities that would be subject to the law. At the time chapter 551 took effect, moreover, the Division, in fact, considered these buildings to be the permitholders’ LGFs. A slot machine licensee must have a designated slot machine gaming area (“SMGA”) where “slot machine gaming may be conducted in accordance with the provisions of” chapter 551. §§ 551.102(2), 551.114, Fla. Stat. Section 551.114(4) specifies where the licensee is allowed to locate its SMGA: Designated slot machine gaming areas may be located within the current live gaming facility or in an existing building that must be contiguous and connected to the live gaming facility. If a designated slot machine gaming area is to be located in a building that is to be constructed, that new building must be contiguous and connected to the live gaming facility. For ease of reference, the term “slot machine building,” or “SMB,” will be used herein to refer to any building besides the LGF in which a licensee optionally locates its SMGA. As the statute makes clear, every SMB, whether previously existing, newly constructed, upgraded, refurbished, retrofitted, or freshly painted, must be “contiguous and connected to” the LGF. This will be called the “CCT Requirement.” THE DIVISION’S INTERPRETATION OF THE STATUTE Over time as it implemented section 551.114(4), the Division interpreted the text in ways which SCF alleges constitute unadopted rules. The circumstances surrounding the development of these interpretations are interesting, and a good deal of evidence was adduced in this proceeding establishing them, but it is not necessary, for present purposes, to make detailed findings concerning these historical facts. Readers who would like to know more about the events leading to this rule challenge may read the Recommended Order (“Calder RO”) that the undersigned issued in The Florida Horsemen’s Benevolent & Protective Association, Inc. v. Calder Race Course, Inc., et al., DOAH Case No. 18-4997, 2019 Fla. Div. Admin. Hear. LEXIS 283 (Fla. DOAH May 24, 2019) (the “License Challenge”). If the undersigned were to make extensive findings of historical fact in this Final Order, such findings would be substantially the same as, if not identical to, the findings set forth in the Calder RO. The primary relevance, to the instant case, of the historical facts relating to the Division’s approvals of SMBs at Calder and another track (Pompano Park/Isle of Capri), respectively, would be to show that, despite the absence of rulemaking or other written evidence of its statutory interpretations, the agency has formulated (but not formally adopted) governing principles for making regulatory decisions—”nonrule policies,” in other words—whose existence and contents can be deduced from the agency’s actions, namely the issuance of slot machine licenses or renewals manifesting underlying determinations that this SMB or that one is compliant, as a matter of ultimate fact, with the provisions of chapter 551, including the CCT Requirement. Recently, however, on February 3, 2020, the Division issued the Calder FO, wherein the agency expressed very clearly not only its understanding of what the relevant words of section 551.114(4) mean (the semantic content), but also what law is made thereby (the legal content). It is, therefore, no longer necessary to deduce the Division’s statutory interpretations from its actions; that these statements exist, and have specific linguistic content, are matters now beyond genuine dispute, the statements having been communicated in writing by the agency itself.2 2 This is what the undersigned meant when he wrote in the Order Regarding Official Recognition that, based on the Calder FO, the Division’s interpretive statements relating to section 551.114(4) “appear to be not genuinely disputable.” In other words, to be clear, the existence and contents of the Division’s interpretive statements are now beyond reasonable Continued on next page... From the Calder FO, the Division’s interpretive statements can be fairly, accurately, and concisely described.3 The first statement of interest dispute, although there might be some relatively insignificant disagreements at the margins regarding the meaning of the agency statements. Independent of all that, the question of whether the Division’s interpretation of section 551.114(4) is the best interpretation, or even a reasonable one, is sharply disputed. While the correctness of the Division’s interpretive statements is a matter of continued conflict, that particular dispute need not be decided in this proceeding, whose focus, instead, is on whether the statements meet the definition of a rule, a question that has little to do with whether the statements reflect the best, or correct, reading of the statutory text. (A statement that expresses nothing but a literal comprehension of the statutory text, reflecting only such meaning as is readily apparent without reading between or beyond the lines of the codified language, is not a rule by definition; nor, however, is it an “interpretation,” strictly speaking. Such a literal paraphrase could be called “correct,” though, and so, to the extent a decision is required regarding whether a statement adds legal content to the underlying statute’s straightforward semantic content, some consideration must be given to the correctness, in this narrow sense, of the statement at issue.) 3 So that no one can misinterpret what the undersigned is doing here, let it be clear. First, the undersigned is not implying that the Calder FO is itself an unadopted rule. The Calder FO is, of course, an order, which determines the substantial interests of specifically named parties, subject to judicial review. The undersigned is saying, however, because it is indisputably true, that the Calder FO contains statements that communicate—expressly, unambiguously, and in specific language (not by implication or through interpretation)— the Division’s interpretation of section 551.114(4). In fact, the Calder FO includes a section titled “Interpretation of Section 551.114(4), F.S.” Thus, while the Calder FO is not, per se, an unadopted rule, it is evidence of the Division’s interpretation of a section 551.114(4); indeed, it is convincing evidence thereof. (The agency’s interpretive statements are not hearsay because what makes them relevant is their existence and contents, not the “truth” of the matters asserted. See § 90.801(1)(c), Fla Stat.) Further, the Division’s interpretation of the statute is, obviously, highly relevant because agency statements that interpret law fall within the definition of a rule when, as SCF alleges here, they do so in ways which give the law meaning not readily apparent from the raw semantic content of the statutory text being implemented. It should also be noted that it makes no difference where or how an agency communicates a statement of general applicability that meets the definition of a rule. There is no “final order immunity” that somehow shields statements contained in a final order from examination in a section 120.56(4) proceeding. We are concerned here with three basic questions: (i) does the statement exist; (ii) if so, what is the content of the statement; and (iii) does the statement’s content meet the definition of a rule? The Calder FO persuasively proves both the existence of the statements at issue and the contents of the statements issue. Second, in describing the Division’s interpretive statements, the undersigned is not attempting to summarize the entire Calder FO. Nor is he purposefully adding to, or subtracting from, the agency’s statements. This is not an exercise in straw-man argumentation. To the extent possible, the undersigned is using the agency’s exact words; his intent, again, is to express the Division’s statutory interpretation accurately and fairly. The Calder FO is available for anyone to read, and the undersigned invites everyone who is interested to do just that and decide for him or herself whether the descriptions herein of the Continued on next page... concerns the CCT Requirement. As the undersigned reads the Calder FO, the Division has interpreted the statute to mean that a licensee’s SMB is “contiguous and connected to” its LGF if the SMB and LGF: (i) “share a common boundary,” for which simply “being located on the same piece of property” is sufficient; (ii) are no more than a “short distance” from one another; (iii) are not on opposite sides of “a public roadway, waterway, or any [similar] barrier”; and (iv) are “connected” by a walkway between the two, for which an outdoor sidewalk is sufficient. In its Response in Opposition to the Order Regarding Official Recognition, however, the Division stated that and (iv) “may not be required” in every instance and, thus, are not necessary conditions. In other words, the SMB and LGF might be farther than a “short distance” from each other and still be “contiguous”; and the two structures, if respectively self-contained, might be “connected” other than by a “walkway” between them. Making this correction, the agency statement becomes: A licensee’s SMB is “contiguous and connected to” the LGF if the SMB and LGF: (i) “share a common boundary,” for which “being located on Division’s interpretive statements are accurate and fair. (The Division expressed some minor disagreements with the undersigned’s original descriptions of the agency interpretations at issue, and these disagreements will be addressed in the text above.) Third, relatedly, the undersigned emphatically disclaims any intention of using unfair descriptions of the Calder FO to turn “narrow issues” into “more general” statements having a “broader scope of applicability” than the agency intends. The fact is, however, that there is nothing “fact-specific” about the Division’s interpretation of section 551.114(4), and the Division’s insisting otherwise will not make it so. This point will be discussed further above, but let it be emphasized in this footnote that a statement’s relative applicability is determined based upon the level of generality expressed by the statement’s language, that is, by the inclusiveness or exclusiveness of the semantic content of the text. The more inclusive the statement, the more generally applicable it is. A statement of general applicability, so framed, is not rendered “fact-specific” simply because it has been applied to the facts of a specific case in determining the substantial interests of a particular party. the same piece of property” is sufficient;4 and (ii) are not on opposite sides of “a public roadway, waterway, or any [similar] barrier.”5 What cannot be disputed, bottom line, is that the Division, in its own words, interprets “the plain statutory language” of section 551.114(4) as “contemplat[ing]” that the SMB may be “a stand-alone separate building” from the LGF. See Calder FO at 42. From this interpretation, it follows logically that having structural elements in common with the LGF, or sharing integrated systems therewith (e.g., exterior envelope, HVAC, electric, and plumbing), is not a necessary condition of an SMB’s satisfying the CCT Requirement; that is, even without such integration, the SMB and LGF may be deemed statutorily “contiguous and connected to” each other, according to the Division. The undersigned will call this the “nonintegration principle.” The nonintegration principle is the Division’s seminal insight regarding the meaning of section 551.114(4); if the nonintegration principle were deemed false (incorrect), such determination would guarantee the falsity (incorrectness) of the Division’s statement that “the plain statutory language” of section 551.114(4) “contemplate[s]” that the SMB may be “a stand-alone separate building” from the LGF. This is because, to state the obvious, “a stand-alone separate building” is, by that description, a self- 4 Because it is necessary that all of the permitholder’s pari-mutuel facilities be located on the property “specified in the permit,” see section 550.0115, Florida Statutes, and because slot machines must be located “within the property of the [permitholder’s] facilities,” see sections 551.101 and 551.114(1), part (i) of the agency statement makes “shar[ing] a common boundary” practically a given, and certainly a gimme. 5 It is usually unhelpful to define anything by describing what the thing being defined is not, which entails a process of elimination. Saying that being “contiguous and connected” means being not separated by a public roadway, etc., tells us nothing that we didn’t already know; it is the answer to a question that no one would ask, akin to saying that the CCT Requirement prohibits a permitholder from locating its SMB in a different city or state from the LGF. Like part (i) of the agency statement, part (ii) imposes a “requirement” that is a gimme, if not a given. Taken together, the two parts, (i) and (ii), comprising the agency statement under consideration, come very close to eliminating the CCT Requirement altogether, reducing it to the ineffectual status of “requirement in name only.” As the Division sees it, the CCT Requirement has little practical effect, if any, other than ensuring that the SMB and LGF have the same address, which is already assured. contained structure that is not integrated with another structure. So, the Division’s statement that the statute allows the use of a nonintegrated SMB is true only if SMB/LGF integration is not a necessary condition of compliance with the CCT Requirement. In its Response in Opposition to the Order Regarding Official Recognition, the Division states that the Calder FO “does not comment on whether it is ever necessary, to satisfy the [CCT] requirement, that the SMB and LGF ‘have any common structural elements or integrated systems, e.g., exterior envelope, HVAC, lighting, etc.’“ This is trivially true inasmuch as the Calder FO does not specifically describe the nonintegration principle as such. But the point is irrelevant because, as just explained, if section 551.114(4) permits locating an SMGA in a separate, stand-alone building, as the Division maintains, then the nonintegration principle must exist, and it must be true, regardless of whether the Division actually utters the words that communicate the concept. If the Division meant to say more, i.e., to imply that there might be an as-yet unrevealed exception or exceptions to the nonintegration principle, this possibility, whatever else might be said about it,6 does not negate the nonintegration principle itself. This is because the principle does not hold that nonintegration is a necessary condition of compliance with the CCT Requirement; that is, integration does not guarantee failure. Nor does it hold 6 One thing that can be said if there exists an exception to the nonintegration principle is that an SMB’s “being located on the same piece of property” as the LGF would not be a sufficient condition for finding that the two “share a common boundary,” contrary to what the Division has said elsewhere. If there were an exception, then sometimes (when the exception applies) integration would be required in order for the two structures to share a common boundary and be deemed contiguous to one another. To explain, locating a self- contained SMB on the same piece of property as the LGF guarantees compliance with the “common boundary” requirement—i.e., is a sufficient condition therefor—only if the nonintegration principle has no exceptions. (The undersigned takes for granted that integration would never be required to meet the only other identified requirement, namely that the SMB and LGF not be separated by a public roadway, waterway, or similar barrier, because that condition would be so easily met by putting the two structures on the same side of the street or river.) that nonintegration is a sufficient condition of compliance with the CCT Requirement; that is, nonintegration does not guarantee success. Rather, the nonintegration principle holds that integration is not a necessary condition of compliance with the CCT Requirement; or, put another way, that nonintegration is statutorily permissible. Why is this significant? Because if section 551.114(4) literally requires an integrated SMB/LGF in all cases where the SMGA is located outside the current LGF, then the Division’s interpretation of the CCT Requirement is not readily apparent from what is actually stated in the statutory text, even if it might conform to the legislature’s communicative intent,7 which would mean that the agency has declared what the law shall be (a legislative power), as opposed to applying the law as it is (an executive power). And, as we know, an agency is authorized to exercise delegated legislative authority only through formal rulemaking. The second statement concerns the meaning of the term LGF, which the Division defines as being any area, including an “open-aired, unenclosed place” or “space,” from which patrons can “view … and/or [be] within the physical presence of” contests occurring in real time, and at which they may engage in pari-mutuel betting on such contests using equipment designed to facilitate these “live gaming activities.” In its Response in Opposition to the Order Regarding Official Recognition, the Division asserts that the foregoing description of its definition of the term LGF is too narrow, because the Division defines LGF to include the racetrack as well. The undersigned accepts this assertion to be true, and revises his original description accordingly. 7 The legislature might have intended, for example, to communicate meaning beyond the plain semantic content of the statutory text, whose full linguistic content thus could not be understood without an appreciation of pragmatic considerations, such as programmatic goals, arguably better known to the agency than to the citizenry. If so, the necessary and proper, lawful agency response would be to take quasi legislative action and adopt a rule. The track, of course, is the “field of play” for live horse racing performances, analogous to the three-walled court (or cancha) on which jai alai players perform. Clearly, there can be no LGF without a track or cancha; this practically goes without saying. Including the live performance site, definitionally, as an element of the LGF, however, is inconsequential to this case because neither a track nor a cancha, by itself, could constitute an LGF; there must be something to accommodate patrons, who obviously cannot watch, or place wagers on, live contests while sitting or standing upon the track or jai alai court. The relevant question in this case is whether the statute literally requires that something to entail conditioned space within an enclosed building shell.8 Reduced to its undisputed essentials, the Division’s position is that while an LGF may be an enclosed building, it needn’t necessarily be. An open- air, unenclosed place or space will suffice, if properly equipped to facilitate wagering. It is this “open-air option” to which SCF objects as the instantiation of a policy that exceeds the raw semantic meaning of the term LGF and thus constitutes an unadopted rule. SCF alleges that the Division has formulated a third unadopted rule, extrinsic to the Calder FO, which is not interpretive in nature but rather is a prescriptive statement to the effect that certain ultimate facts are conclusively determinable as a matter of law if the basic facts are undisputed. To the point, SCF contends that the Division has decided that, if a hearing is requested to determine whether an SMB satisfies the CCT Requirement, the proceeding will be governed by section 120.57(2) unless the objective facts on 8 At times, the Division appears to imply that the LGF comprises entire pari-mutuel complex, so desirous is the agency to get across the idea that the term LGF must be read expansively. While warning of the dangers of defining LGF too narrowly, the Division seems unconcerned about the opposite problem, namely reading LGF so broadly that the term ceases to have relevant meaning. If the LGF is everything on the permitted premises, then it is nothing specifically identifiable. For the LGF to have discernible boundaries—a necessary condition of contiguity with another structure, by the way—there must be a limiting principle or Continued on next page... the ground are genuinely disputed. SCF contends that the Division is using this “gatekeeper mechanism” to deny SCF (and another party) the formal hearings they have requested, pursuant to sections 120.569 and 120.57(1), to challenge the renewal of Calder’s slot machine license, based on allegations that Calder does not have a statutorily compliant LGF and that its SMB fails to meet the CCT Requirement. The Division has not published a notice of rulemaking under section 120.54(3)(a) relating either to the open-air option, the nonintegration principle, or the gatekeeper mechanism. Nor has the Division presented evidence or argument on the feasibility or practicability of adopting any of these alleged statements of general applicability as a de jure rule. THE DIVISION’S IMPLEMENTATION OF THE ALLEGED UNADOPTED RULES As mentioned above, the historical facts giving rise to the agency interpretations at issue are not only, for the most part, undisputed, but also, more importantly, largely irrelevant for purposes of determining the merits of this action under section 120.56(4). The Division’s implementation of the alleged unadopted rules does have some bearing, however, on the question of SCF’s standing, which is a hotly contested issue in this case. Therefore, an abridged history follows. Of the eight pari-mutuel facilities eligible for slot machine licensure, only Pompano Park/Isle of Capri (“PPI”) and Calder have chosen the option contained in section 551.114(4) to erect a new building in which to locate their respective SMGAs. All of the other eligible permitholders opted to locate their SMGAs within their current LGFs; these were buildings, enclosing conditioned environments, not open-air places exposed to the elements. Because Broward County satisfied the local referendum requirement before Miami-Dade County did, PPI’s application for slot machine licensure was the principles to delimit the definitional scope. The Division has been reluctant to commit to such limiting principles. first to require the Division’s decision as to whether an SMB that was to be constructed would meet the CCT Requirement. The physical configuration of PPI’s SMB, as planned and built, was not “contiguous” to its existing LGF under any ordinary understanding of the word “contiguous,” which denotes actual contact along a common boundary; the buildings were in “reasonably” close proximity, but they did not communicate in the sense of opening into each other. Nor was PPI’s SMB “connected to” its LGF in accord with the image that readily comes to mind when thinking about how two contiguous structures would be connected to each other. The two separate, stand-alone buildings were “connected,” not physically, through any sort of direct contact, but figuratively, by basic transport infrastructure—i.e., a covered walkway between them.9 This apparent departure from the plain meaning of section 551.114(4) resulted from the Division’s desire to give the eligible permitholders some “leeway” in satisfying the strict statutory requirement that an SMB be “contiguous and connected to” the current LGF, according to David Roberts, who headed the Division from 2001 through 2009, and who was involved in making the decision.10 After Miami-Dade County satisfied the local referendum requirement in 2009, Calder applied for its initial slot machine license. Because Calder, 9 They were connected, that is to say, in the same way Tallahassee is connected to Jacksonville via Interstate 10. 10 On October 17, 2019, the agency head of DOAH began systematically reviewing every final order and recommended order prior to, and as a prerequisite of, its issuance. Pursuant to this review, the director makes written “comments and suggested edits” on some, but not all, orders. Although the presiding officer is not required to accept the director’s suggested edits, he is not given the option of declining the director’s review. As a result, the undersigned received two comments, one on the paragraph above and the other on paragraph 30 of this Final Order, which are, at least arguably, “relative to the merits,” and hence which are, or might be, ex parte communications prohibited by section 120.66(1)(a), Fla. Stat. (no “ex parte communication relative to the merits” shall be made to the presiding officer by “[a]n agency head,” among others). Erring on the side of caution and disclosure, the undersigned hereby places on the record the director’s comment concerning paragraph 24: “This is the crux of Continued on next page... like PPI, intended to place its SMGA in a self-contained casino, which would be newly constructed, Calder sought and received the Division’s permission to build a separate, stand-alone SMB pursuant to the same informal policy that had relaxed the strict CCT Requirement for PPI. The Division’s issuance to Calder of its initial slot machine license manifested the Division’s determination that Calder’s SMB and LGF, as initially configured after construction of the new SMB, were compliant with all of the statutory requirements for slot machine gaming licensure, including the CCT Requirement. In 2016, Calder demolished its grandstand building; as of this hearing, Calder has not replaced its former LGF with a new building of any kind. The demolition of the grandstand was one of several actions taken in furtherance of a business decision by Calder to distance itself from live racing activities at Calder Race Course. Other actions included slashing the number of annual performances during the race meet, from an average of 250 performances per year to 40 performances per year; the entry into a contract with Gulfstream Park to operate and manage Calder’s abbreviated race meet; and a reduction in the number of stalls available for the stabling and training of racehorses. There is an ongoing dispute as to whether Calder, without an enclosed building for live gaming, has a legally sufficient LGF. See License Challenge. What is not disputed is that Calder lacks an LGF capable of housing an SMGA in compliance with chapter 551, because an SMGA must be housed in a building. Calder’s “LGF,” such as it is, currently consists of open-air viewing areas where patrons can watch, and place wagers on, live races. The primary viewing area is located in front of the final stretch of the racetrack, at a spot called the “apron.” There are some outdoor seats and tiki huts on the apron, and, during the race meet, Calder erects a collapsible canopy tent, your most defensible finding.” Any party desiring to rebut this communication shall be allowed to do so in accordance with section 120.66(2). which, despite the absence of walls, provides a bit of shelter for wagering machines, video screens, and, of course, patrons, for whom additional outdoor seating is provided. The casino is at least 100 yards from the temporary “big tent.” It is possible to walk from the casino to the big tent, and return, on a concrete walkway, but the walkway is only partially covered, which means, when it rains, that patrons cannot go back and forth between the SMB and the “LGF” without getting wet. The walls of the SMB do not touch or abut the areas where patrons can view the live horse races and place bets. Indeed, a patron can walk into the main entrance of the casino, play the slot machines, and then leave, without once seeing, or being within a football field’s length of, an area that allows the viewing of live horse racing. At the time of the hearing, Gulfstream Park’s general manager was William Badgett. (Gulfstream Park, recall, operates Calder’s race meet pursuant to contract.) Mr. Badgett testified as follows regarding the decline in attendance and wagering after the demolition of Calder’s grandstand: [W]hat I’ve seen is—it’s, pretty much, in black and white. The numbers over the year—year to year to year[—]have declined mostly because this is the best that we can offer at the facility without building a permanent structure. … When it rains the water comes down the hill and people just leave. And what I’ve seen from the owners is they’ll come to watch a race. After the race they’ll leave. … [I]t has declined year to year to year in the handle and the amount of people that we see there. When asked whether, based upon his many years of experience in the horseracing industry as a trainer and as a track manager, he believed that the lack of a grandstand and of any protection from the elements has negatively affected the amount of live handle at the race meets at Calder Race Course, Mr. Badgett answered, “Yes, absolutely.” Describing the experience of watching a race at ground level on the apron, Mr. Badgett testified: What we do is we put televisions in the tent because it’s not as—You, more or less, have to walk down the apron if you want to see it live. There’s a structure in the middle of the—of the in-field, which is the tote board, which doesn’t work anymore. So, it’s a little bit of an obstruction. You can see [the race], but you’re better off watching it on television. The undersigned credits Mr. Badgett’s testimony on these points. DETERMINATIONS OF ULTIMATE FACT It is determined as a matter of ultimate fact that both the open-air option and the nonintegration principle have the effect of law because the Division, if unchecked, intends consistently to follow them in carrying out its responsibilities to administer chapters 550 and 551 generally, and section 551.114(4) specifically. Each statement creates rights (in the form of expanded locational options for SMBs and architectural options for LGFs) that are exercisable by slot machine licensees.11 While directly regulating the physical plant of a permitted pari-mutuel facility, these statements collaterally regulate live gaming licensees, including businesses owing racing animals such as SCF, whose licensed occupations require access to, and the use of, the permitholders’ LGFs and other pari-mutuel facilities. From the perspective of a licensed racehorse owner, the LGF (which it neither owns nor controls) is the environment for its audience, the spectators whose money (wagered on races) helps fund the purses and awards that compensate the licensee for its services. A law that allows an LGF to be an open-air place as opposed to a climate controlled 11 The undersigned hereby places on the record the director’s comment regarding paragraph 30: “Finding the agency’s future intent as a matter of fact is troubling.” Any party desiring to rebut this communication shall be allowed to do so in accordance with section 120.66(2). Continued on next page... building is detrimental to the interests of a business licensee whose success in a pari-mutuel occupation depends upon the continued presence of a large, paying audience, for the obvious reasons that an open-air place is unlikely to be as comfortable, or as amenity-rich, as a building; and, taken together, less comfort and fewer amenities, relatively speaking, are more likely to discourage potential customers from showing up.12 Similarly, the nonintegration principle negatively affects the interests of live gaming licensees such as SCF because it allows the permitholder literally to draw patrons away from the live gaming activities upon which the live gaming licensees depend, to a “nearby,” but physically separate and independent, SMB. The relative draw of the SMB, moreover, which must be an enclosed building, is enhanced if the LGF, pursuant to the open-air option, does not afford patrons a conditioned environment. That is, when the nonintegration principle works in tandem with the open-air option at the same pari-mutuel facility, the result is even more disadvantageous to live gaming licensees, because the disequilibrium in patron comfort, as between slot machine players and live game spectators, ratchets up as the LGF becomes more stripped-down. The bottom line is that the nonintegration principle and the open-air option are unadopted rules because, in the Division’s hands, they create legally protected opportunities for permitholders to design, configure, and construct their physical plants, in ways that predictably and substantially affect live gaming licensees. 12 The undersigned regards this as self-evident. Common, everyday experience informs the undersigned—who doubts that any reasonable person can genuinely deny—that an enclosed, dry, heated or cooled environment, separated from the outdoors, where a spectator can sit and watch a race without being exposed to direct sunlight, wind, or insects, is more attractive to potential customers, in the main, than an open-air place where the spectator might be uncomfortably hot or cold, windswept, and bitten by mosquitoes; thus, a building is a relatively stronger draw. Continued on next page... The gatekeeper mechanism, in contrast, while perhaps having some of the characteristics of a general principle, is primarily a quasi-judicial ruling, operative only in the context of a quasi-judicial administrative proceeding, and lacking any broad regulatory effect. While such a ruling plainly affects the interests of the party or parties to the particular proceeding, it is judicially reviewable without the mediation of yet another administrative proceeding (unlike an intended regulatory decision, which becomes final unless a hearing is requested).13 To be sure, the question of whether an agency statement to the effect that “formal hearings shall not be granted if the historical facts are undisputed, leaving for determination only the ultimate fact of compliance” (whose level of generality is somewhat higher than the gatekeeper mechanism at issue) could be deemed an unadopted rule is fairly debatable. Yet, even that apparently rule-like statement, which arguably “describes the procedure or practice requirements of an agency,”14 would be actionable only as an interlocutory order in a quasi-judicial proceeding, because only such a proceeding would give the agency an opportunity to use the statement. It is hard, therefore, to distinguish between 13 In other words, if a party disagrees with the agency’s decision under section 120.569(2)(a) to deny the party’s request for a formal hearing, that party does not need to request another administrative hearing to contest the decision. The agency’s decision to deny a formal hearing and proceed under section 120.57(2) is a nonfinal order, which may be immediately appealed under section 120.68(1)(b), see United States Service Industries-Florida v. Department of Health and Rehabilitative Services, 383 So. 2d 728 (Fla. 1st DCA 1980), or reviewed on plenary appeal from an adverse final order, see Spuza v. Department of Health, 838 So. 2d 676 (Fla. 2d DCA 2003). If the agency refuses to discharge its duty under section 120.569(2)(a), mandamus will lie. See Cmty. Health Charities v. Dep’t of Mgmt. Servs., 961 So. 2d 372 (Fla. 1st DCA 2007). 14 See § 120.52(16), Fla. Stat. (definition of “rule”). “policy” and “reversible error” in this instance.15 Ultimately, the undersigned determines that the gatekeeper mechanism is not a rule by definition.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: The Respondent was certified as a law enforcement and correctional officer by the Criminal Justice Standards and Training Commission on June 26, 1979, and Respondent was issued certificate numbers 02-023577 and C-1097. At all times material to this proceeding, Respondent was a certified law enforcement and correctional officer and was employed as a deputy sheriff by the Columbia County Sheriff's Department holding the rank of lieutenant. Respondent had been employed by the Columbia County Sheriff's Office since 1975, except for the period from 1979 to 1981. The Respondent appeared and gave sworn testimony before the Grand Jury of the Third Judicial Circuit of Florida, in and for, Columbia County, Florida (Grand Jury) on February 15, 1984. On or about May 8, 1984, Respondent was interviewed by Special Agent Harry L. Peel of the Federal Bureau of Investigation and agents of the Florida Department of Law Enforcement (FDLE). Either before or during this interview, Respondent requested a polygraph examination which was administered by Peel. As a result of the polygraph examination, Respondent was told by Peel that he was apparently "forgetting something", and after further discussion with Peel and agents of FDLE, Respondent agreed to voluntarily go back before the Grand Jury and "straighten all this up." On May 9, 1984, Respondent appeared before the Grand Jury for the second time to give sworn testimony. Prior to testifying, Respondent was questioned by Eugene T. Whitworth, Assigned State Attorney, James R. Murray, Assigned Assistant State Attorney and Dan Clark, Assigned Assistant State Attorney as to Respondent's understanding that no "deal" had been made and that no immunity was attached to his testimony. It was then explained to Respondent by Whitworth, Murray and Clark that any determination of perjury charges in regard to Respondent's testimony before the Grand Jury would be "up to" the members of the Grand Jury. A review of Respondent's responses during this dialogue with different members of the Assigned State Attorney's Office shows that Respondent was concerned about his previous testimony before the Grand Jury on February 15, 1984 but that Respondent did not think he had lied during his previous testimony. Respondent felt that he had failed to tell the Grand Jury the "whole truth" in his previous testimony and that there may be inconsistencies between his previous testimony and the testimony he was prepared to give on May 9, 1984. Prior to testifying before the Grand Jury on May 9, 1984, Respondent was advised by Whitworth to call his attorney and discuss the probable consequences of testifying before the Grand Jury on May 9, 1984. After calling his attorney, the Respondent voluntarily testified before the Grand Jury. There was insufficient evidence to prove that Respondent had told Peel that he had lied to the Grand Jury in his previous testimony on February 15, 1984. The Respondent was assigned by Sheriff Spradley to the Wynnemore Farm's horse racing track (Track) after Jack Wynne, owner of the Track, complained about the Sheriff's Auxiliary not properly performing its duty at the Track which was being paid for by Wynne. On February 15, 1984 in response to questions concerning his knowledge of the unlawful gambling activity at the Track, Respondent "had thoughts about it, but could never prove it" and nobody approached him "to make any bets or nothing." Respondent "weren't sure there was anything illegal going on, other than hearing people talk on the streets." On May 9, 1984, in reference to the gambling activity at the track, Respondent testified that he told Sheriff Spradley at about the time he was assigned to the Track that "there may be a little gambling going on out there" and that Sheriff Spradley replied "to just keep the auxiliary up front" and "not to worry about the gambling because it wouldn't be that big or nothing like that." On February 15, 1984, Respondent was not positive that he had discussed the situation at the Track with Sheriff Spradley but, testified that "I might have. I'm not positive. I couldn't swear to that, but it seems that I did, that I might have went to him and told him that I thought there was a little bit of gambling...." And further testified that the Sheriff replied, "I'll get it checked into." However, Respondent did recall speaking to Felix Eades, Chief Investigator for the Sheriff's Office, before the arrests about the possibility of "some gambling going on" and that Eades' response was that he "would check into it, and it didn't sound like much to him neither." On May 9, 1984, while testifying before the Grand Jury, Respondent recalled a conversation with Sheriff Spradley wherein the Sheriff told Respondent that "there may be some gambling going" but for Respondent "to overlook it." On February 15, 1984 Respondent testified that it was not one of his responsibilities to inform Wynne of the presence of any law enforcement officers at the track who may be conducting an investigation. On May 9, 1984 Respondent testified that Wynne asked to be informed if the Respondent saw any investigators at the Track. Respondent did not inquire any further, and Wynne did not explain his reasons for wanting to know about the investigators. On February 15, 1984 Respondent could not recall any discussion with any one, including Wynne, before the arrests were made concerning an ongoing investigation of the activities at the Track. On May 9, 1984 Respondent recalled that he had informed Wynne about a week before the raid took place "that he was fixing to be raided." On February 15, 1984 Respondent could not recall any conversation with any member of the Sheriff's Office, particularly Wade Harris, in regard to being involved in a controlled substance violation such as removing contraband from the evidence room. On May 9, 1984 Respondent recalled a conversation wherein Harris told Respondent that Harris had removed marijuana from the evidence room, hauled it to Sisters Welcome Road and transferred the marijuana to Sheriff Spradley's car. Respondent also recalled a conversation with Harris wherein Harris and someone else raided a house in Ft. White, Florida to steal some marijuana. Although there were some discrepancies in Respondent's February 15, 1984 testimony when compared to his May 9, 1984 testimony, a review of the May 9, 1984 testimony shows that Respondent did not consider his February 9, 1984 testimony to be false but only a failure of "not coming in here the first time and telling everything." Respondent resigned from the Columbia County Sheriff's Office shortly after his appearance before the Grand Jury on May 9, 1984 and subsequently was hired by the Department of Corrections as a correction officer. During Respondent's tenure with the Department of Corrections he was given good performance ratings and promoted from a tower guard to being in charge of a dormitory with 172 inmates. Respondent is presently employed by L. J. Kennedy Trucking Company as shipping manager and has held that position for approximately 1 1/2 years. There is no evidence in the record that Respondent was ever charged with perjury before the Grand Jury. Respondent's testimony at the hearing that he had been truthful on both occasions but "remembered" a number of facts after he testified on February 15, 1984 and that he was "scared to death" was credible and consistent with his testimony before the Grand Jury.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses, it is, therefore, RECOMMENDED that the Commission enter a Final Order dismissing the Administrative Complaint filed herein. Respectfully submitted and entered this 23rd day of July, 1987. WILLIAM R. CAVE, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of July, 1987. COPIES FURNISHED: Rod Caswell, Director Criminal Justice Standards Training Commission Department of Law Enforcement Post office Box 1489 Tallahassee, Florida 32302 Robert R. Dempsey Executive Director Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Joseph S. White, Esquire Assistant General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Stephen A. Smith, Esquire 101 East Madison Street P. O. Box 1792 Lake City, Florida 32056-1792 APPENDIX The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in this case. Rulinqs on Proposed Findings of Fact Submitted by the Petitioner 1. Adopted in Finding of Fact 1. 2.-3. Adopted in Finding of Fact 3. 4. Adopted in Finding of Fact 2. 5. Adopted in Finding of Fact 5. 6. Adopted in Finding of Fact 10. 7. Adopted in Finding of Fact 11. 8.-9. Adopted in Finding of Fact 10. 10. Adopted in Finding of Fact 11. 11. Adopted in Finding of Fact 12. 12. Adopted in Finding of Fact 12 in substance. 13.-14. Adopted in Finding of Fact 13. 15.-17. Adopted in Finding of Fact 14. 18. Adopted in Finding of Fact 15 in substance. Adopted in Findings of Fact 4 and 15 in substance. Rejected as not supported by substantial competent evidence in the record. Rulings on Supplemental Findings of Fact Submitted by Petitioner 1. Rejected as immaterial and irrelevant. 2.-3. Adopted in part in Finding of Fact 19, otherwise rejected as immaterial and irrelevant. 4.-6. Rejected as immaterial and irrelevant. Rulings on Proposed Findings of Fact Submitted by the Respondent 1. Adopted in Finding of Fact 1. 2.-3. Adopted in Finding of Fact 3. Adopted in Finding of Fact 4. Adopted in Finding of Fact 5. Adopted in part in Findings of Fact 10 and 11, otherwise rejected as argument. Adopted in part in Findings of Fact 6 and 15, otherwise rejected as argument. Adopted in part in Findings of Fact 4, 6, 14, 15 and 19, in part, otherwise rejected as argument or as immaterial and irrelevant. Rejected as argument. Adopted in part in Findings of Fact 4 and 19, otherwise rejected as argument.
The Issue Whether Respondent, or his agent or employee, possessed, or permitted someone to possess, at or in the licensed premises, alcoholic beverages not authorized by law to be sold by Respondent. Whether Respondent, or his agent or employee, allowed patrons to gamble at card games, contrary to Section 849.01, Florida Statutes. Whether Respondent, his agent or employee allowed patrons to possess and consume marijuana and crack cocaine on the licensed premises.
Findings Of Fact Respondent Dennis Maxwell holds DABT License number 45-00933, and owns and operates the Club 21 in Leesburg, Florida. License number 45-00933 is a series 2-COP license, authorizing the sale and consumption of beer and wine only on the premises. Mr. Maxwell has been in business as the Club 21 at 945 East Main Street in Leesburg, Florida, since approximately February 1992. Club 21 is frequented by a predominantly young (early 20's), black clientele, not unlike a number of other bars in Leesburg. Club 21, however, has been unique in the severity of problems experienced by the Leesburg Police in attempting to maintain peace and lawfulness. Upon information that the service of alcoholic beverages to minors has been occurring, agents of DABT, with assistance from local law enforcement, entered Club 21 in an undercover capacity at approximately 10:00 p.m. on Friday, January 15, 1993. They discovered open and obvious violations of both the beverage law and Florida criminal law, specifically gambling (card game for money), and unauthorized liquor being stored and consumed on the premises. On January 15, 1993, at 10:00 p.m., a high stakes card game was in progress in a somewhat separate area of the premises just to the left of the entrance. At a table with a group of men playing cards, was a pile of currency, with a large "pot" of money in the middle of the table. The pot was collected by the winner of each hand. Additionally, other persons standing around the seated players were placing separate wagers in connection with the ongoing game. The game was occurring in plain view of the patrons in the bar, and anyone entering or exiting the premises. The card game continued for approximately 20-30 minutes prior to uniformed law enforcement officers entering the premises. The Respondent was present at Club 21 during that entire night, and admitted to having permitted the card games to occur, but denied that gambling was occurring. Mr. Maxwell, likewise, admitted that he would recognize the commonly understood circumstances of a card game for money by the money set out in front of each card player, and the "pot" of money in the middle of the table. Although he observed the same game occurring as testified to by other witnesses, he does not recall seeing the money on the table. Respondent further testified that the area of the bar known as the "game room" was often used for card games, but that he had never been aware of gambling occurring in connection with such games. Respondent's testimony is not credible in light of the circumstances. The licensee did permit persons to play for money at a card game on his premises. During the course of the DABT operation on January 15, 1993, several bottles of unauthorized liquor was observed in plain view in the kitchen of Club The liquor consisted of one unsealed 1.75 liter bottle of Seagram's Dry Gin, one unsealed .750 liter bottle of Seagram's dry Gin, and one unsealed pint bottle of Canadian Mist Whiskey. Petitioner was aware that the liquor described was in fact in the kitchen. As to the larger bottle of gin, Mr. Maxwell contended that it belonged to one of his employees, Karl Welcome, who was celebrating his birthday that night, and had stopped by the premises to engage in a celebratory toast with his friends and coworkers. Mr. Welcome testified to that effect on direct examination, but admitted on cross that his birthday is actually May 18, not January 15, and that he had made up that story originally for the benefit of the officer who had found the liquor. As to the remaining bottles of liquor, Respondent claimed that he had confiscated them from patrons earlier that afternoon, and placed them in the kitchen because he was too busy to dump them out. In light of Mr. Maxwell's further testimony that there is hardly any business at Club 21 in the afternoon, and he does not have much to do until nighttime, his contention is not credible. Petitioner knew that the liquor was in the kitchen, and took no meaningful action to correct that situation. During the course of their stay in an undercover capacity inside Club 21, two witnesses observed what they believed was marijuana being openly smoked by patrons in the area of the bar itself on the premises. One witness described two patrons openly sharing what appeared to be a marijuana joint while actually seated at the bar. The "joint" was passed back and forth openly and in plain view of two bartenders who were standing directly in front of these patrons, and who actually brought beer to, and took money from, these patrons while they were openly smoking a joint. Two witnesses smelled an odor which is commonly associated with the smell of marijuana burning in the area of the bar during the entire time they were there. From the smell, they testified that in their opinion it was obvious that other patrons besides those seated directly at the bar were smoking as well. Officers of the Leesburg Police Department arrested a patron of Club 21 on the premises for possession of cocaine on the evening of January 15, 1993. Officer Mullin field tested the substance and testified that both his field test and the laboratory analysis conducted on it confirmed that it was cocaine. The possession charges are the subject of an ongoing criminal case. Respondent had been visited by a DABT Special Agent during the fall of 1992 on a routine call. At that time, unauthorized liquor was found of the same variety as was found in January 1993. A record of the discovery was made but a notice of violation was not issued. Rather, the seriousness of unauthorized liquor on the premises was discussed and Mr. Maxwell had been warned not only about that particular violation, but about the dangers of drug use on the premises, and related problems. Mr. Maxwell recalled the visit and the warning, and testified that Agent Hurlburt had been honest and forthright with him, and had emphasized the risk of an enforcement action against a licensee for allowing violations of law to occur on a licensed premises.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent's license number 45-0093 be suspended for a period of twenty (20) days, and that Respondent pay a civil penalty in the amount of $1,000.00. DONE AND ENTERED this 22nd day of July, 1993, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 22nd day of July, 1993. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's proposed findings of fact. Accepted in substance: paragraphs 1, 2, 3, 6, 7, 8, 9, 10(in part), 13, 14 Rejected as immaterial, irrelevant or subsumed or argument: paragraphs 4, 5, 10(in part), 12(in part) Rejected as against the greater weight of evidence: paragraphs 12(in part) COPIES FURNISHED: John F. Gilroy, Esquire Assistant General Counsel Department of Business and Professional Regulation Northwood Center 1940 North Monroe Street Tallahassee, Florida 32399-1007 Dennis L. Maxwell Post Office Box 53 Eustis, Florida 32727 John Harris Acting Director Division of Alcoholic Beverages and Tobacco Northwood Center 1940 No. Monroe Street Tallahassee, Florida 32399-0792 Jack McRay General Counsel Department of Business and Professional Regulation Northwood Center 1940 North Monroe Street Tallahassee, Florida 32399-0792
