The Issue The issues are whether Petitioner is entitled to attorney fees and costs pursuant to Section 120.595(3), Florida Statutes, and if so, in what amount.
Findings Of Fact Petitioner was the prevailing party in DOAH Case No. 00-1600RX on one of two challenged rule provisions. In that case, the challenge to Rule 61K1-1.0011(3)(c), Florida Administrative Code, which required all contracts between a manager and a boxer to be filed with Respondent within seven days of execution, was dismissed on its merits. Rule 61K1- 1.0011(3)(g), Florida Administrative Code, and Form BPR-0009451 incorporated therein, were found to be invalid exercises of delegated legislative authority to the following extent: (a) that Rule 61K1-1.0011(3)(c), Florida Administrative Code, deemed contacts between managers and boxers to contain all provisions set forth in Form BPR-0009451; and (b) that Form BRP- 0009451 deemed contracts between managers and boxers to be void if the managers were unlicensed on the date their contracts were executed or if the managers failed to file the contracts with Respondent within seven days of execution. Respondent presented no evidence, testimonial or documentary, in DOAH Case No. 00-1600RX or the instant case, showing that it had a reasonable basis in fact to promulgate Rule 61K1-1.0011(3)(g), Florida Administrative Code, and Form BPR-0009451 incorporated therein, in 1985 or thereafter to amend, enforce, or defend said rule and form. Respondent admits that it has not maintained the pertinent rulemaking record required by Section 120.54(8), Florida Statutes. There is no competent evidence that Respondent in fact conducted the mandatory rule reviews required by Section 9 of Chapter 96-159, Laws of Florida, or Section 3 of Chapter 99-379, Laws of Florida. Respondent did not file post-hearing depositions showing that it ever conducted these rule reviews. Respondent admitted during the hearing of the instant case that it had no written documentation confirming that the rule reviews took place. There is no factual evidence showing the existence of special conditions that would make an award of attorney's fees and costs unjust in this case. There is no evidence showing how to allocate Petitioner's requested attorney's fees and costs between the two challenged rule provisions. The record in DOAH Case No. 00-1600RX does not indicate that the Intervenor Danny Santiago created duplicitous and unnecessary work for Petitioner and Respondent. Two of the depositions taken on December 5, 2000, at the instance of Intervenor Danny Santiago and over Respondent's objections, were filed in DOAH Case No. 00-1600RX, becoming part of the record in that case. Moreover, there is no evidence showing how to allocate a portion of Petitioner's requested attorney's fees and costs to work created exclusively by Intervenor Danny Santiago. Petitioner filed an Affidavit of Attorney Fees and Costs on March 19, 2001. Petitioner seeks to recover $13,235 in fees and costs. Petitioner presented competent evidence that the requested attorney's fees were reasonable based on the number of hours expended (66.175) and the rate charged per hour ($200). Petitioner also presented competent evidence that an expert witness fee in the amount of $1,000 is reasonable in this case. Respondent objected to Petitioner's requested attorney's fees as they relate to the following specific charges: (a) charges pertaining to an unrelated case in which Respondent sought to discipline Petitioner for violating Respondent's rules; (b) charges relating to Petitioner's Motion to Compel Discovery after Petitioner improperly served the original discovery requests and was required to serve the discovery requests a second time; and (c) charges relating to the preparation of the instant motion for fees and costs. Petitioner agreed to reduce his claim for fees and costs by the amount of the disputed charges if Respondent could provide the total amount. After much discussion, the parties agreed to file a post-hearing stipulation as to the amount to be deducted from Petitioner's claim. The parties never filed that stipulation. The undersigned has compared the record in DOAH Case No. 00-1600RX with the list of charges for fees and costs attached to Petitioner's Affidavit of Attorney Fees and Costs. The undersigned has also taken into consideration Respondent's objections to certain charges and Petitioner's acquiescence to those objections. The record reveals that Petitioner is not entitled to recover the following: (a) charges on April 13 and 27, 2000, in the amount of $100 that pertain to a request for and granting of oral argument that did not occur in the underlying case; (b) charges on July 6, 2000, and July 31, 2000, in the amount of $100, relating to review of an unidentified motion to compel and review of an order granting that motion, which did not occur in the underlying case; (c) charges on July 17 and 27, 2000, and August 14, 2000, in the total amount of $320, relating to Petitioner's improper motion to compel discovery after Petitioner incorrectly served the original discovery requests on the Attorney General and was required to serve the discovery requests a second time; (d) a charge on August 24, 2000, in the amount of $200 for attendance at court, which did not occur in the underlying case; (e) a charge on September 11, 2000, in the amount of $50 for review of an order dismissing with prejudice, which did not occur in the underlying case; (f) charges on February 23, 2001, in the amount of $80, relating to the preparation of the instant motion for fees and costs; and (g) charges on October 26, 2000, in the amount of $500 for travel to a deposition. The reduction amount for attorney's fee charges totals $1,350. There are no other identifiable disputes over amounts claimed by Petitioner as recoverable expenses or costs. Therefore, Petitioner is entitled to recover $11,885 in attorney's fees and costs incurred in DOAH Case No. 00-1600RX and an additional $1,000 for expert witness fees in the instant case, for a total recovery in the amount of $12,885. This amount is reasonable under the facts of this case. The record in DOAH Case No. 00-1600RX clearly reflects that Respondent had sufficient and timely notice of Petitioner's intent to seek attorney's fees and costs prior to the entry of the Final Order. In Respondent's meeting on December 6, 2000, Respondent's counsel advised Respondent several times that it would be liable for attorney's fees and costs if the challenged rules or portions thereof were found to lack statutory authority. Counsel for Petitioner and Intervenor Danny Santiago made appearances on behalf of their respective clients at that meeting. Petitioner made his first formal demand for attorney's fees and costs in his Proposed Final Order, which was filed in DOAH Case No. 00-1600RX on January 22, 2001. Respondent filed its Statement of Defenses to Petition for Attorney Fees in the instant case on March 19, 2001. Respondent raised the issue that Petitioner's demand for attorney's fees and cost was untimely for the first time in Respondent's Proposed Final Order filed in the instant case on May 11, 2001.
The Issue The issue in this case is whether the application for a Class "D" security officer license submitted by Alejandro Rodriguez should be granted or denied.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, and the entire record of this proceeding, the following findings of fact are made: The Department of State is the state agency responsible for regulating and licensing private security officers. Sections 493.6100 - .6126, Florida Statutes. On July 15, 1994, Mr. Rodriguez and two friends, Eliseo Figueroa and Albert Gonzalez, went to the Miracle Center Movie Theater complex in Miami, Florida, to meet Albert's girlfriend and one of her friends. They telephoned one of the women to let her know that they were going to be late, and they arranged to meet in the theater showing the movie "True Lies." When the men arrived at the theater complex, they were not able to buy tickets for "True Lies" because the theater was sold out; instead, they purchased tickets for the movie "Lion King." When the men entered the theater complex, they began walking toward the theater showing "True Lies." They were intercepted by the theater manager, who told them they could not go into that theater because it was full. The men told the manager that they were meeting friends who were in the theater and needed to go into the theater just to make contact. Although they told the manager that they did not intend to watch the movie, he refused to let them go into the theater to find their friends, telling them that it would disturb the moviegoers. The manager also refused to go into the theater himself to locate the two women the men were to meet. As this exchange was taking place, one of the women came out of the theater, saw the men, and returned to the theater to get her friend. The two women joined the three men, and they began walking across the theater lobby on their way out of the complex. Mr. Rodriguez and Mr. Figueroa were walking together, and the two women and Mr. Gonzalez were walking ahead of them. Mr. Gonzalez made a derogatory comment about the manager, which he overheard. The manager took offense, told the group that he was going to call the police because of the derogatory remark, and sent the assistant manager to find the off-duty police officer who was providing security at the theater. Meanwhile, the two women went to the restroom, Mr. Gonzalez went to the concession stand, and Mr. Rodriguez and Mr. Figueroa went into the theater showing the movie "Lion King," where they stood in the back and watched the movie. After several minutes, the manager, the assistant manager, and Officer Luis Ruiz, the off-duty police officer providing security for the theater, entered the theater. The manager asked Mr. Rodriguez and Mr. Figueroa to step outside into the lobby, which they did. Once they were in the lobby, Officer Ruiz told Mr. Rodriguez and Mr. Figueroa that they had to leave the theater complex, that "the party is over." Mr. Rodriguez demanded to know why they were being asked to leave since he and Mr. Figueroa had purchased tickets and had done nothing wrong. The manager told them they had to leave, without giving any explanation. Mr. Rodriguez again demanded to know why. Officer Ruiz repeated his order that they leave. Mr. Rodriguez refused and again demanded to know why. Officer Ruiz told him that he would be placed under arrest if he did not leave the theater complex. During this exchange, Mr. Rodriguez used profanity and his protests became louder and louder. Several of the movies had ended, and patrons were crowding into the lobby area where the group was gathered. Officer Ruiz became more and more agitated, and the situation generally deteriorated. Even after Officer Ruiz threatened Mr. Rodgriguez with arrest, he still refused to leave. Officer Ruiz told him that he was under arrest and was going to jail, and he grabbed Mr. Rodriguez's wrist to restrain him so he could put on handcuffs. When Officer Ruiz told Mr. Rodriguez he was under arrest and grabbed his wrist, Mr. Rodriguez panicked and his only thought was to get away. He yelled that he was not going to go to jail and swung the arm Officer Ruiz had grabbed, slamming him into the wall. A scuffle ensued, with the manager, the assistant manager, and another man trying to help Officer Ruiz subdue Mr. Rodriguez. The five men fell to the floor; Mr. Rodriguez was face down, and, with the manager and the other man holding Mr. Roeriguez down, Officer Ruiz straddled him as he was trained to do to gain the maximum advantage when trying to handcuff an unruly individual. Officer Ruiz was sitting on Mr. Rodriguez's back, facing his feet, and was just about to get the handcuffs around his wrists when Mr. Rodriguez managed to stand up, throwing off Officer Ruiz and the other men; he stopped and looked around, then proceeded to run out of the theater complex and down the street. He was apprehended several blocks away. Officer Ruiz suffered bruises as a result of being slammed against the wall by Mr. Rodriguez, 2/ but there apparently was no damage done to theater property as a result of the incident. On October 26, 1995, Mr. Rodriguez filed with the Department the application for a Class "D" security officer license which is the subject of this proceeding. In his application for licensure, Mr. Rodgriguez disclosed that adjudication had been withheld in two criminal cases, case numbered F94-23888 and case numbered F94-38895, arising in Dade County, Florida, and that he was sentenced to probation in each case. The charges in case numbered F94-23888, arising out of the incident which occurred on July 15, 1994, were felonies. The terms of probation for both cases were concurrent and expired on May 31, 1996. 3/ Mr. Rodriguez is not, therefore, currently on probation on a felony charge. Mr. Rodriguez gave his probation officer no problems during his term of probation, and one of the special conditions of his probation was that he participate in an anger control program. He expressed remorse and acknowledged that he was wrong to behave as he did at the theater complex; and he testified that he would behave differently if he ever found himself in a similar situation. On July 15, 1994, Mr. Rodriguez was one week away from his nineteenth birthday; he is now 21 years of age, married, and the father of a young son. Prior to this incident, Mr. Rodgriguez had never been arrested. The Department has presented sufficient credible evidence to establish that Mr. Rodriguez committed an act of violence on Officer Ruiz which was not undertaken in the lawful protection of himself or others. However, the evidence is also sufficient to establish that, while Mr. Rodriguez showed very poor judgment in provoking the confrontation at the theater complex and in resisting arrest, he has matured and rehabilitated himself. Therefore, in light of the facts found herein, with consideration given to all of the evidence presented and to the demeanor of the witnesses, Mr. Rodriguez has carried his burden of persuasion and demonstrated his entitlement to a Class "D" security officer license by a preponderance of the evidence.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of State enter a final order granting the application of Alejandro Rodriguez for a Class "D" security officer license and placing Mr. Rodriguez on probation for a period of two (2) years under such reasonable terms and conditions as may be imposed by the Department. DONE AND ENTERED this 11th day of Deecember, 1996, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUMCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 11th day of December, 1996.
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.
The Issue The issue is whether Rules 61K1-1.0011(3)(c) and 61K1- 1.0011(3)(g), Florida Administrative Code, and a portion of Form BPR-08-451 (currently Form BPR-0009451), which is incorporated therein by reference, constitute an invalid exercise of delegated legislative authority.
Findings Of Fact Respondent, formerly known as the Florida State Athletic Commission, licensed Petitioner as a manager of participants in boxing matches effective September 5, 1997. On or about September 17, 1997, Petitioner and Intervenor entered into a contract for Petitioner to be Intervenor's manager and for Intervenor to render services for Petitioner in professional boxing contests. Petitioner did not file a copy of this contract with Respondent within seven days of its execution. Petitioner and Intervenor had a disagreement after several fights regarding their respective rights and duties under the contract. On or about April 26, 1999, Intervenor filed a Complaint for Declaratory Relief and Permanent Injunction in the Circuit Court, Fifth Judicial Circuit, in and for Marion County, Florida, Case No. 99-781-CA-D. Among other things, Intervenor requested the court to declare the September 17, 1997, contract to be null and void for two reasons: (a) because Petitioner had not filed it with Respondent within seven days of its execution as required by Rule 61K1-1.011(3)(c), Florida Administrative Code; and (b) because the contract did not contain all provisions specifically set forth in Respondent's Form BPR- 0009451, entitled Letter of Agreement Between Participant and Manager, as required by Rule 61K1-1.0011(3)(g), Florida Administrative Code. Petitioner filed a counter-claim in Marion County Circuit Court Case No. 99-78-CA-D, bringing Respondent in as a party. Petitioner's counter-claim alleged that there was no legislative authority for an administrative rule to declare a contract between a manager and a boxer void. As of December 6, 2000, the civil suit was in abeyance pending issuance of the final order in the instant case. On April 5, 2000, Respondent issued a Notice to Show Cause directed to Petitioner. Said notice alleged that Petitioner as a manager had entered into a contract with Intervenor, a licensed boxer, and that Petitioner had not filed the contract with Respondent. The Notice to Show Cause referenced Rules 61K1-1.011(3)(c) and 61K1-1.011(3)(g), Florida Administrative Code. Petitioner filed this rule challenge proceeding on April 11, 2000. Petitioner seeks a determination that Rules 61K1-1.011(3)(c) and 61K1-1.011(3)(g), Florida Administrative Code, including a portion of Form BPR-0009451, constitute an invalid exercise of delegated legislative authority to the extent they purport to automatically void a contract if the manager is not licensed when the contract is executed or if the manager fails to file a copy of the contract with Respondent within seven days of the execution date. Rules 61K1-1.0011(3), Florida Administrative Code, states as follows in pertinent part: (3) Contracts Between Manager and Participant. * * * (c) All contracts shall be in writing and shall be filed with the commission within 7 calendar days of execution . . . . * * * (g) All contracts entered into in Florida between a manager and a participant, and all such contracts entered into outside of Florida involving participants and managers licensed by or subsequently licensed by the commission, shall expressly contain all provisions specifically as worded in Form BPR-0009451, entitled Letter of Agreement Between Participant and Manager, incorporated herein by reference and effective May, 1990, and if they do not, shall be deemed to contain such provisions. The specific language in Form BPR-0009451 that Petitioner objects to is: This contract is automatically void if manager is not licensed on the date this contract is signed or fails to file with the Florida State Athletic Commission, a copy of this contract within 7 calendar days of its execution.
Findings Of Fact After serving 32 years as Tax Collector for Walton County, Jack Little decided to retire in 1992. There were several Democratic candidates and one Republican candidate who ran for Tax Collector. Among the Democratic candidates was Sue Carter who had been employed in the Walton County Tax Collector's office prior to resigning to run for tax collector. The first Democratic primary was held in September, 1992, resulting in a runoff primary between Sue Carter and Sue Rushing in October, 1992. Ms. Carter defeated Ms. Rushing. In November 1992, Sue Carter won the general election. Respondent, Patty Lynch (Lynch), was employed in the tax collector's office in 1992 as a title clerk. As title clerk, Lynch dealt with the public in issuing vehicle license renewals, registering titles for vehicles, and issuing handicap parking permits. Pat Pollard, Teresa Gomillion, Tammy Day and Sylvia Rushing were also employed in the tax collector's office during the 1992 election campaign. Ms. Gomillion and Lynch supported Ms. Carter. Ms. Day did not support Ms. Carter. Ms. Rushing was related to Sue Rushing, Ms. Carter's opponent. Ms. Pollard did not support anyone for the office of Tax Collector. Pat Pollard was a title clerk, and her work station was located about ten feet away from Lynch's work station. Before the first and second Democratic primaries, Ms. Pollard heard Lynch discuss politics with customers. Lynch would encourage nonregistered voters to register to vote and to vote for Carter. She saw Lynch hand out palm cards for Carter to customers during office hours. Palm cards are used by political candidates to advertise their candidacy. The cards are usually small and may feature a picture of the candidate and information concerning the qualifications of the candidate. Pamela Dyess has been employed at a car dealership in DeFuniak Springs for 16 years. During 1992, her job responsibilities required her to go to the tax collector's office to handle the tag and title work for the dealership. Between the first and second primaries, Ms. Dyess went to the tax collector's office and while she was there the subject of the first primary was discussed. Ms. Dyess stated that she had voted for Harley Henderson. Ms. Gomillion joined in the conversation. Later Lynch joined in the conversation and told Ms. Dyess that she needed to vote for Carter. Ms. Dyess was upset by Ms. Gomillion's and Lynch's comments and felt that they were telling her how to cast her vote. Sylvia Burke, a lifelong resident of DeFuniak Springs, supported Sue Rushing in the race for tax collector. During the runoff, Ms. Burke went to the tax collector's office to renew her car tag. She teased Lynch saying that she was going to politick for Ms. Rushing. Her remark set off an argument between Lynch and Ms. Burke on the candidates for tax collector. Rodney Ryals has been an employee for the City of DeFuniak Springs for the last ten years. During 1992, Mr. Ryals spent a great deal of time at the tax collectors's office taking care of city business and visiting with his friend Ms. Pollard. While at the tax collector's office, Ryals saw Lynch hand out campaign cards for Carter depicting Carter's picture and listing Carter's qualifications. Lynch tried to give Mr. Ryals campaign literature. Mr. Ryals did not support Carter in the tax collector's race. During Ryals' visits to the tax collector's office, Lynch would tell him, "You better vote for Sue Carter, she's the only qualified candidate." Mr. Ryals advised Lynch that she should not politick on the job and she responded that she had to politick on the job because she might lose her job if anyone else got elected. Sherry Sylvester sold merchandise for House of Lloyd as a side line. She would get persons to hostess demonstration parties or silent parties. The customers would place orders with the hostess of the party, who in turn would transmit the orders to Ms. Sylvester and receive free merchandise for being a hostess. Lynch had given several House of Lloyd parties for Ms. Sylvester. Either before or after the first primary, Ms. Sylvester went to the tax collector's office to see Lynch concerning House of Lloyd business. While Ms. Sylvester was at the tax collector's office, Lynch, aware that Ms. Sylvester supported Ms. Rushing, tried to get Ms. Sylvester to switch to supporting Carter. Lynch tried to give Ms. Sylvester one of Carter's palm cards. Mr. Little had advised his employees that they should not politick during office hours. Ms. Carter had also warned Lynch about campaigning in the office.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission on Ethics enter a final order finding that Patty Lynch violated Section 112.313(6) and recommending a civil penalty of $500 and a public censure and reprimand. DONE AND ENTERED this 19th day of August, 1994, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND 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 19th day of August, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-2068EC To comply with the requirements of Section 120.59(2), Florida Statutes (1993), the following rulings are made on the parties' proposed findings of fact: Advocate's Proposed Findings of Fact. (Revised Proposed Recommended Order) Paragraphs 1-5: Accepted in substance. Paragraph 6: The first sentence is accepted in substance. The second sentence is accepted except as to the distance between Ms. Pollard's work station and Ms. Lynch's work station. The greater weight of the evidence demonstrated that the work stations were located about ten feet apart. Paragraph 7: Accepted in substance. Paragraphs 8-11: Rejected to the extent that they are not findings of fact but rather recitation of testimony. Paragraph 12: Accepted in substance. Ms. Pollard did not support any candidate for Walton County Tax Collector. Paragraphs 13-16: Rejected to the extent that they are not findings of fact but rather recitation of testimony. Paragraph 17: The second sentence is accepted in substance. The remainder of the paragraph is rejected to the extent that they are not findings of fact but rather recitation of testimony. Paragraphs 18-19: Rejected to the extent that they are not findings of fact but rather recitation of testimony. Paragraph 20: The first sentence is rejected as not constituting a finding of fact but rather recitation of testimony. The second sentence is rejected as constituting argument. Paragraph 21: The first three sentences are accepted in substance. The remainder of the paragraph is rejected as constituting recitation of testimony. Paragraph 22: Rejected as constituting recitation of testimony. Paragraph 23: The first sentence is accepted in substance. The second sentence is rejected as constituting recitation of testimony. Paragraph 24: Rejected as constituting recitation of testimony. Paragraph 25: The first sentence is rejected as constituting argument. The second sentence is rejected as constituting recitation of testimony. Paragraphs 26-33: Rejected as recitation of testimony. Paragraph 34: Rejected as unnecessary. Paragraphs 35-41: Rejected as recitation of testimony. Paragraph 42: The first sentence is rejected as unnecessary. The last sentence is rejected as recitation of testimony. Respondent's Proposed Findings of Fact Paragraphs 1-3: Accepted in substance. Paragraphs 4-7: Rejected as constituting recitation of testimony. Paragraph 8: Rejected as constituting argument. Paragraph 9: The first sentence is rejected as unnecessary. The remainder of the paragraph is rejected as subordinate to the facts actually found. Paragraphs 10-14: Rejected as constituting recitation of testimony. Paragraph 15: Rejected as constituting argument. Paragraph 16: The first sentence is rejected as constituting recitation of testimony. The second sentence is rejected as constituting argument. Paragraph 17: The first sentence is rejected as constituting recitation of testimony. The remainder of the paragraph is accepted in substance. Paragraphs 18-20: Rejected as constituting recitation of testimony. Paragraph 21: The first sentence is rejected as unnecessary. The remainder is rejected as constituting recitation of testimony. Paragraphs 22-23: Rejected as constituting recitation of testimony. Paragraph 24: The first sentence is rejected as constituting argument. The second sentence is rejected as constituting recitation of testimony. The remainder of the paragraph is rejected as unnecessary. Paragraphs 25-26: Rejected as constituting recitation of testimony. Paragraph 27: Rejected as unnecessary. Paragraphs 28-29: Rejected as recitation of testimony. Paragraph 30: The first sentence is rejected as recitation of testimony. The second sentence is rejected as subordinate to the facts actually found. Paragraph 31: The first sentence is rejected as unnecessary. The remainder of the sentence is rejected as constituting recitation of testimony. Paragraph 32: The first sentence is rejected as subordinate to the facts actually found. The second sentence is accepted in substance. Paragraph 33: The last sentence is rejected as constituting argument. The remainder of the paragraph is rejected as recitation of testimony. Paragraph 34: The first sentence is rejected as unnecessary. The last sentence is rejected as constituting recitation of testimony. Paragraph 35: The first part of the sentence is accepted in substance. The second part of the sentence is rejected as not supported by the greater weight of the evidence. COPIES FURNISHED: Carrie Stillman Complaint Coordinator Commission on Ethics Post Office Box 15709 Tallahassee, Florida 32317-5709 Michael E. Ingram Assistant Attorney General Department of Legal Affairs, PL-01 The Capitol Tallahassee, Florida 32399 Allan Ramey, Esquire Post Office Box 369 Defuniak Springs, Florida 32433-0369 Bonnie Williams Executive Director Florida Commission On Ethics Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Phil Claypool, Esquire General Counsel Ethics Commission Post Office Drawer 15709 Tallahassee, Florida 32317-5709
The Issue The issue for resolution in this case is whether Proposed Rules 8E- 4.003(3), (4), (9), (10) & (11) and Proposed Rule 8E-4.005 constitute invalid exercises of delegated legislative authority as asserted by Petitioner.
Findings Of Fact Findings based on written stipulations. On September 11, 1992, Petitioner submitted an application for certification as a "facility for a new professional sports franchise." Petitioner's application contains the information required by Section 288.1162(4)(a)-(g), Florida Statutes, but does not demonstrate that eligible costs for which funding is being sought pursuant to Section 212.20, Florida Statutes, are for costs incurred after the award of the new professional sports franchise or after the start of certification, as required in Proposed Rule 8E- 4.003(3). Due to the effect of the proposed rule on Petitioner, Petitioner is a "substantially affected person" as that term is used in Section 120.54(4)(a), Florida Statutes. Findings based on evidence at hearing. On October 30, 1992, the Department of Commerce published Proposed Rule 8E-4 in the Florida Administrative Weekly. Portions of that proposed rule are the subject of this rule challenge proceeding. The full text of the proposed rule (with the challenged portions underscored) is as follows: 8E-4.001 Purpose. This rule contains the procedure for applying for certification pursuant to s. 288.03, Florida Statutes. 8E-4.002 Application Procedures. An application for certification under s. 288.03, Florida Statutes, as a "Facility For A New Professional Sports Franchise" or a "New Spring Training Franchise Facility" shall be submitted to the Secretary of Commerce and shall comply with and conform to the following requirements: An original and 5 copies shall be submitted. Applicants shall be a "unit of local government" as defined in s. 218.369, Florida Statutes, or a private sector group that has contracted to construct or operate a professional sports franchise facility on land owned by a unit of local government. The application must be signed by an official senior executive of the applicant. Items or forms requiring certification shall be notarized according to Florida Law providing for penalties for falsification. 8E-4.003 Application Contents. An application for certification as a Facility for New Professional Sports Franchises shall include the following: Documentation that the franchise team meets the following requirements: The franchise is not based in Florida prior to July 1, 1990. The applicant has a signed agreement with a new professional sports franchise for the use of the facility for at least 5 years or more. The new professional sports franchise agreement has been approved by one of the following leagues: National League (baseball) American League (baseball) National Basketball Association National Football League National Hockey League An independent analysis or study which demonstrates that the use and operation of the professional sports franchise facility will generate revenues on transactions at the facility of $2 million or more annually by taxes imposed under Part I of Chapter 212, Florida Statutes. Documentation of the actual cost or cost estimate for new construction, reconstruction, or renovation of the facility. Such documentation of cost shall be for construction, reconstruction, or renovation of the facility incurred or to be incurred after the award of the new professional sport franchise or after the start of certification. Eligible costs also include those incurred after July 1, 1990 and prior to the granting of a franchise where the costs were a necessary part of the competitive process for the awarded franchise. The applicant shall provide a commencement date upon which new construction, reconstruction, or renovation began or will begin. Projections demonstrating that the new franchise will attract a paid attendance of more than 300,000 annually. All data sources and methodologies of the projections must be included. Documentation that the municipality in which the facility is located, or the county if the facility is in an unincorporated area, has certified by resolution after a public hearing that the application serves a public purpose. Documentation that a unit of local government as defined in s. 218.369, Florida Statutes, is responsible for the construction, management, or operation of the professional sports franchise facility, or holds title to the property on which the professional sports franchise facility is located. Documentation that the applicant has demonstrated that it has provided, is capable of providing, or has a financial or other commitments to provide more than one-half of the costs incurred or related to the improvement and development of the facility. Statement certifying that applicant will comply with s. 288.1167, Florida Statutes, relating to requirements for minority participation. Documentation of the applicant's organization structure and principals. Applicants that are private sector groups shall file a public entity crime affidavit as required by s. 287.133(3)(a), Florida Statutes. 8E-4.004 Application Contents. An application for certification as a New Spring Training Franchise shall include the following: Documentation that the baseball team franchise meets the following requirements: The franchise is not based in Florida prior to July 1, 1990. The applicant has a signed agreement with a new professional sports franchise for the use of the facility for a term of at least 15 years. The agreement is approved by either the National League or the American League of professional baseball. Projections which demonstrate that the new professional baseball spring training facility will attract a paid attendance of at least 50,000 annually. Documentation of the actual cost or cost estimate for new construction, reconstruction, or renovation of the facility. Such documentation of cost shall be for construction, reconstruction, or renovation of the facility incurred or to be incurred after the grant of certification. Eligible costs also include those incurred after July 1, 1990 and prior to the granting of a franchise where the costs were a necessary part of the competitive process for the awarded franchise. The applicant shall provide a commencement date upon which new construction, reconstruction, or renovation began or will begin. Documentation that a unit of local government as defined in s. 218.369, Florida Statutes, is responsible for the construction, management, or operation of the professional sports franchise facility, or holds title to the property on which the professional sports franchise facility is located. Documentation that the applicant has demonstrated that it has provided, is capable of providing, or has financial or other commitments to provide more than one-half of the costs incurred or related to the improvement and development of the facility. Documentation that the New Spring Training Franchise Facility is located in a county that is levying a tourist development tax pursuant to s. 125.0104(3)(b),(c),(d) and (l), Florida Statutes, at the rate of 4 percent by March 1, 1992, and 87.5 percent of the proceeds from such tax are dedicated for the construction of a spring training complex. A site map and certification that the facility is located within 20 miles of an interstate or other limited access highway system. Statement certifying that applicant will comply with s. 288.1167, Florida Statutes, relating to requirement for minority participation. Documentation of the applicant's organization structure and principals. Applicants that are private sector groups shall file a public entity crime affidavit as required by s. 287.133(3)(a), Florida Statutes. 8E-4.005 Application Processing. The Department of Commerce shall certify applications only after these rules have been published in the Florida Administrative Weekly and all requested public hearings have been held. Subsequent to this, the Department shall have two weeks following receipt of an application to notify an applicant of any deficiencies in an application. The Department will allow 30 days from the date of notification for the applicant to correct any such deficiencies. Upon determining that an applicant is or is not certifiable, the Secretary of Commerce will notify the applicant by means of an official letter of his status. If certifiable, the Secretary will notify the Executive Director of the Department of Revenue of such certification by means of an official letter. If the Department of Commerce determines that the applicant satisfies all the conditions of Section 288.1162, F.S., and this rule, certification shall be issued by the Department of Commerce no sooner than, either the date of commencement as provided by the applicant in 8E-4.003(5) or 8E-4.004(5) or 120 days following receipt of application under this rule whichever is the longer. No certification shall be issued until the Department of Commerce has verified that actual construction, reconstruction, or renovation has commenced. The Department of Revenue will begin distributing funds 60 days following certification, but no such distribution may be made prior to July 1, 1992, pursuant to s. 288.03, Florida Statutes. If and when the above-quoted proposed rule becomes an effective rule, the Department of Commerce intends to apply the provisions of the subject proposed rule in the course of determining whether to grant or deny the Petitioner's application for certification as a "facility for a new professional sports franchise." The Department of Commerce intends for the language in Proposed Rule 8E-4.003(3) and (4) to limit funding under the applicable statute to new facility construction costs or to costs of renovation of an existing facility. The Department intends to disallow the use of grant funds for existing stadium construction costs, even if such costs were expended to facilitate the future recruitment of a "new professional sports franchise." The new requirements for certification contained in Proposed Rule 8E-4.003 are considered by the Department to be substantive in nature. The purpose of the funding program created pursuant to Sections 288.1162 and 212.20, Florida Statutes (1991), is to encourage the recruitment of professional sports franchises to Florida. During the 1992 session of the Florida Legislature, amendments were proposed to Section 288.1162, Florida Statutes (1991), which would have had the effect of limiting funding under the program to a reimbursement of costs of new construction. In Senate Bill 216-H, the Legislature proposed authorizing the Department to require that information be submitted regarding cost estimates verified by the Department for the new construction, reconstruction or renovation of the facility. This estimate shall include the costs of debt service on, or the costs to fund debt service reserve funds, costs for arbitrage rebate obligations, and other costs payable with respect to, bonds issued for the new construction, reconstruction or renovation of the facility. (e.s) The amendments proposed in Senate Bill 216-H would have eliminated as an approved use of the funds payment of costs of refinancing construction bonds and would have limited the use of funds only to newly incurred costs. In addition, the proposed bill provided that upon certification of an applicant, the Department shall also certify to the Department of Revenue the amount to be paid monthly to the applicant. In the case of a professional sports franchise facility, such amount shall be the lesser of $166,667 per month for a 30 year period, or the costs of the project verified by the Department pursuant to paragraph (4)(g) [which is the language cited directly above] and amortized over a 30 year period. The statutory limitation proposed by Senate Bill 216-H is consistent with, if not identical to, the limitation intended by the Department of Commerce through the promulgation of Proposed Rule 8E-4. Senate Bill 216-H failed to be enacted into law.
The Issue Whether the Petitioner, American Amateur Mixed Martial Arts, (AAMMA or Petitioner) is entitled to an award of attorney’s fees and costs pursuant to section 57.111, Florida Statutes.
Findings Of Fact AAMMA is a not-for-profit corporation, incorporated under the laws of Florida. It has no full-time employees and utilizes volunteers to conduct its business. Evidence in the record as to AAMMA’s net worth throughout its existence and at the time the case was initiated by the Department of Business and Professional Regulation, State Boxing Commission (Department), demonstrated that AAMMA sustains itself through personal donations from members and fees from a variety of registrations. Evidence further demonstrated that the association was very small with few members and registrations. In fact, AAMMA uses a home gym located on property owned by founders and members Larry and Alice Downs to operate a mixed martial arts/boxing and training school. Mr. Downs’ plumbing business and the Downs’ residence are also located on this property. There was no evidence of the value of the home gym. Additionally, there was no evidence that demonstrated that AAMMA has any ownership interest in the home gym owned by the Downs’ or in any training equipment associated with that gym. More importantly, there was no substantially credible evidence that demonstrated AAMMA was not a separate entity from any of the Downs’ interests or that any of the Downs’ finances should be included in the net worth of AAMMA. On the other hand, the testimony, while not specific, was sufficient to infer that AAMMA’s net worth is well below the $2,000,000.00 threshold for a business to be considered a small business for purposes of section 57.111, Florida Statutes. Moreover, as indicated earlier, AAMMA has no full-time employees. Based on these facts, AAMMA is a small business as defined under section 57.111. The underlying action in this case was initiated by the Department when it filed an Amended Administrative Complaint against AAMMA in DOAH Case No. 12-0142.2/ Additionally, after a lengthy multi-day hearing during which both sides vigorously litigated their side of the case and after both parties filed Proposed Recommended Orders in the matter, AAMMA was the prevailing party in DOAH Case No. 12-0142. In case 12-0142, the Amended Administrative Complaint was based on evidence that was obtained through investigation by the Department both before and after the filing of the Administrative Complaints in the related DOAH Case No. 11-5102.3/ The amended complaint in case 12-0142 alleged in Count I that Respondent allowed minors under the age of 18 to engage in mixed martial arts (MMA) matches on January 28, 2011; February 26, 2011; May 6, 2011; July 16, 2011; and August 3, 2011, in violation of sections 548.006(4), and 548.071(1), Florida Statutes, and Florida Administrative Code Rule 61K1- 1.0031(1)(c), by failing to enforce the ISKA Overview as Respondent’s minimum health and safety standards and engaging in unprofessional conduct. The ISKA Overview contained age limits for participants in amateur MMA matches. The evidence in the underlying case demonstrated that AAMMA allowed athletes under the age of 18 years to participate in MMA matches on the dates alleged in the Amended Administrative Complaint. Clearly, such evidence constitutes a reasonable basis in fact for which the Department may proceed with an administrative action. The Department alleged in Count II of the Amended Administrative Complaint that Respondent was aware of, and allowed, amateur fighters to compete outside the appropriate weight class on July 16, 2011, in violation of sections 548.006(4) and 548.071(1) Florida Statutes, and Florida Administrative Code Rule 61K1-1.0031(1)(c), by failing to enforce the health and safety standards in Respondent’s Rules and ISKA Overview Guidelines, specifically regarding weight classes, as well as, engaging in unprofessional or unethical conduct. Again, the evidence presented in DOAH Case No. 12-0142 showed that Robert Birge, a heavyweight, and Travis Grooms, a super heavyweight, competed against each other at the July 16, 2011, event with a weight difference of 61 pounds. Again, there was a reasonable basis in fact for the Department to proceed with an administrative action. The Department alleged in Count III of the Amended Administrative Complaint that Respondent misled American Legion Post #75 into signing a letter that incorrectly stated the American Legion was the sole sponsor of Respondent’s May 6, 2011, amateur event, thereby violating section 548.071(4), by engaging in unprofessional or unethical conduct. The Department’s evidence showed that Alice Downs, Larry Downs, Jr., and his secretary had access to AAMMA’s letterhead. While the evidence eventually showed that the event held on May 6, 2011, was not sponsored by AAMMA or the American Legion, the Department’s evidence clearly established that the letter to the Department attempting to exempt the May 6, 2011, event from regulation was on AAMMA’s letterhead. From these facts, it was reasonable for the Department to conclude that the letter came from AAMMA at the time it initiated the underlying action and was an attempt to mislead the American Legion into signing the letter in order to gain an exemption under the statutes for the May 6 event. Given these facts, there was a reasonable basis for the Department to proceed with an administrative action. In conjunction with the factual basis of the underlying administrative action, the Department’s legal position in that action was based on its authority to regulate amateur sanctioning organizations and the rules the boxing commission had promulgated under the authority granted to it in chapter 548, Florida Statutes. Ultimately, AAMMA prevailed because the rules of the boxing commission were so vague that they could not be enforced against AAMMA based on the law governing enforcement of such rules. However, the Department, at the initiation of the underlying proceeding and throughout this process, had reasonable legal arguments which it posited to support its interpretation that the ISKA Overview contained the health and safety standards AAMMA was required to follow and that the Department was required to enforce. The fact that the Department did not prevail in its legal position does not support a finding that its position did not have a reasonable legal basis. Given these facts, the Department had a reasonable basis in law to proceed with an administrative action against AAMMA. Finally, the undersigned has reviewed the affidavit as to Attorney’s Fees and Costs filed on September 23, 2013, and the corrections thereto, and finds the fees and costs contained therein to be reasonable. However, since the Department was substantially justified in initiating the underlying proceeding in this action, Petitioner is not entitled to an award of attorney’s fees or costs in this matter.
Findings Of Fact The following relevant facts are undisputed: The Division is the arm of the Department of Business and Professional Regulation with the duty and responsibility to permit and regulate pari- mutuel wagering facilities throughout the state. §§ 550.002(7) and 550.01215, Fla. Stat. Petitioner is a pari-mutuel permittee that owns and operates the Daytona Beach Racing and Card Club in Volusia County, located at 1 Unless otherwise noted, all references to the Florida Statutes are to the 2020 version, which was in effect when the Petition was filed. 2 Petitioner waived the requirement in section 120.56(1)(c) that the final hearing be conducted within 30 days after assignment of the case. 960 South Williamson Boulevard in Daytona Beach, Florida (“Petitioner’s facility”). Intervenor is a pari-mutuel permittee doing business as St. Johns Greyhound Park in St. Johns County, at a leased facility located at 6322 Racetrack Road, St. Johns, Florida (“Bayard’s facility”), approximately 75 miles north of Petitioner’s facility. On July 8, 2020, Bayard filed with the Division a “Notice of Relocation” of Bayard’s facility to an eight-acre parcel in St. Augustine, Florida, which it is under contract to purchase. Bayard’s Notice of Relocation was filed pursuant to section 550.054(14)(b), Florida Statutes, which reads, in pertinent part, as follows: The holder of a permit converted pursuant to this subsection or any holder of a permit to conduct greyhound racing located in a county in which it is the only permit issued pursuant to this section who operated at a leased facility pursuant to s. 550.475 may move the location for which the permit has been issued to another location within a 30-mile radius of the location fixed in the permit issued in that county, provided the move does not cross the county boundary and such location is approved under the zoning regulations of the county or municipality in which the permit is located, and upon such relocation may use the permit for the conduct of pari-mutuel wagering and the operation of a cardroom. On September 11, 2020, the Division issued its Notice regarding Bayard’s relocation. Finding that Bayard had satisfied all the criteria for relocation pursuant to section 550.045(14)(b), the Division approved the relocation of Bayard’s permit to 2493 State Road 207 in St. Augustine, St. Johns County, Florida. On December 2, 2020, Petitioner filed the Petition challenging the Notice as an unadopted rule in violation of section 120.56(4). The Petition alleges, in pertinent part, as follows: 10. As part of the [Notice], the Division included a statement summarizing its application of the § 550.054(14)(b) relocation factors, yet failed to set forth any analysis of the conditions for relocation of greyhound permits set forth in § 550.0555(2). Based on this incomplete analysis of Bayard’s Notice of Relocation, the Division approved Bayard’s request to relocate. 12. Consequently, Petitioner is entitled to request a hearing challenging the Division’s agency statement interpreting the applicability of § 550.054(14)(b), and lack of applicability of § 550.0555(2), in the [Notice] as an unpromulgated rule. 21. When analyzing whether to approve Bayard’s request to relocate [Bayard’s facility], the Division reviewed the factors listed in § 550.054(14)(b), but wholly disregarded the factors listed in § 550.0555(2). In other words, the Division determined, that a request, “pursuant to § 550.054(14)(b)” need not satisfy the requirements of § 550.0555(2), despite the fact that such an interpretation finds no support in the relevant statutes themselves. This interpretation of law represents an “agency statement of general applicability that implements, interprets or prescribes law or policy[.]” § 120.52(16), Fla. Stat. Since the Division did not properly adopt this interpretation as a rule, this means it is an invalid unpromulgated rule that cannot support agency action. The crux of Petitioner’s argument is that the Notice reflects an unwritten policy of the Division to apply only the factors in section 550.054(14)(b) to applications to relocate which are filed “pursuant to that section,” and not apply the factors in section 550.0555(2).3 The Notice does not cite, analyze, or otherwise refer to, section 550.0555.
