The Issue The issue to be resolved in this proceeding concerns whether the Respondent set up, promoted or conducted a lottery for money or other thing of value in violation of Section 849.09, Florida Statutes.
Findings Of Fact On August 26, 1998, the Respondent, Personal Investments, Inc., d/b/a Personal Investments (Respondent) held license no. 77-00008, Series 2-COP, authorizing it to sell alcoholic beverages. On that date Mr. Stockton Hess was a corporate officer (Vice President). Mr. Hess was also a corporate officer of the Washington County Kennel Club, Inc. (WCKC) on the above date (President). The Respondent is a business regulated by the Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco (Division) because it sells alcohol. The Washington County Kennel Club (Club) is regulated by the same Department's Division of Pari-mutuel Wagering, because it operates a pari-mutuel wagering facility at the Ebro Greyhound Park Dog Track. The Ebro Greyhound Park is owned and operated by the Club. The Club is in the business of selling pari-mutuel tickets, programs and tip sheets. Personal Investments, Inc., sold alcohol at its concession stands and in the lounge and restaurant at Ebro Greyhound Park, located in Ebro, Washington County, Florida. The Respondent served as concessionaire for food and beverage services through its contract with the Club. The Club has held its pari-mutuel wagering permit and annual pari-mutuel licenses continuously for some forty years. They authorize greyhound racing operations at the Ebro track facility. On August 26, 1998, the Club conducted a game promotion at its greyhound track in which any person entering the facility, regardless of whether he or she paid an admission fee, was provided a split-ticket free of charge. One half of the ticket went into a drum located by the entrance way and the other half of the ticket was retained by the patron. Located next to the drum, and on the Club premises, was a wheel which contained representations of prizes such as t-shirts, magnets, key chains and so forth. Subsequent to the tenth race a Club employee, the front gate hostess, would draw a ticket and another employee, the track announcer, would announce the number drawn. The patron holding the other half of the selected ticket would then present himself to the front gate hostess to verify the number. The patron would then spin the wheel and win whatever prize was reflected at the point where the wheel stopped. The Club bought the wheel, paid for the prizes and its employees operated the game in question. Mr. Hess, an officer of both the Club and the Respondent corporation had knowledge of and intentionally participated in the running of the above-described game. On August 26, 1998, a drawing was conducted after the tenth, twelfth and thirteenth races. No patron responded to the number called out following the tenth race, but patrons responded after their announced numbers were called after the twelfth and thirteenth races. Each of those patrons presented a ticket, spun the wheel, and each won a T-shirt. The Division offered no evidence and was unaware, on August 26, 1998, or thereafter, including at hearing, whether those patrons entered the dog track premises by paying an admission ticket price. On August 26, 1998, three hundred ninety-one patrons attended the track. Two hundred eighty-eight of those patrons or approximately 75% attended the track for free, utilizing free passes made widely available by the Club throughout its market area. On a typical racing day or night in excess of 60% to 70% of the patrons entering the Ebro Greyhound Track facility enter utilizing such free passes, the availability of which is a matter of fairly common knowledge in the track's market area. In accordance with the Division of Pari-Mutuel Wagering requirements, the Club maintains a separate turnstile for patrons entering daily with free passes from those paying an admission fee. Respondent's Exhibit B in evidence is a daily report, submitted to the Division of Pari-Mutuel Wagering, of patrons entering for free as opposed to those who paid an admission fee, including the report for August 26, 1998. It was further the Club's policy that any patron who asks for a free pass at the cashier's window is given one and permitted to enter the track premises free. On August 26, 1998, Division Agent Lee went to the Ebro Greyhound Track, paid a $2.00 admission fee, and used his split- ticket to enter the game promotion. He observed the two patrons who had each won a T-shirt following the twelfth and thirteenth races. He made no attempt to obtain a free admission nor did he inquire as to whether the two patrons who won T-shirts had entered for free. Agent Lee testified that he was unaware at the time he visited the greyhound track on that date that the Club owned the track and conducted the Pari-Mutuel Wagering permit and license, despite the fact that the Division of Pari-Mutuel Wagering, a part of the same department, as the Division, was the source of the request to review the game promotion. Agent Lee thought that the Respondent, Personal Investments, Inc., was conducting the game promotion. In fact, that was not the case, the game promotion was conducted solely by the Club and its employees. Agent Lee testified that on August 26, 1998, as well as on the date of hearing, he had no knowledge or evidence that any agent, servant or employee of the Respondent had set up, promoted or conducted the game promotion or a lottery for money or "other thing of value." Agent Lee also testified that on August 26, 1998, and on the date of the hearing, he had no knowledge or evidence to offer to the effect that Personal Investments, Inc., or its agents, servants or employees attempted to operate, conduct or advertise any lottery scheme or device. Agent Lee was unaware of Division Training Bulletin 93-18 concerning game promotions. This was a memorandum to all District Supervisors of each district office of the Division noting that Section 849.094, Florida Statutes, authorizes game promotions in which the patron must be present to win, provided that the game promotion does not require an entry fee, payment or proof of purchase as a condition for entering the game promotion. Tickets to enter the game promotion are given away without charge by the Club to any patron attending the facility. It is the Division's apparent position that, since Agent Lee paid a $2.00 admission fee to the track and thereafter received his game promotion ticket, that such admission fee constitutes a fee, payment or proof of purchase required as a condition precedent to entering into the subject game promotion. Since almost 75% of the patrons attending the track on the date in question entered free, and since every person entering the track on that date received, without charge, a game promotion ticket, the game promotion ticket cannot be determined to have, as a condition precedent, any fee, payment or proof of purchase as a condition for entry into the game promotion. The "Bud Bowl '99 Sweepstakes" is a common type of game promotion used as an exemplar by the Respondent, the rules of which are depicted in Respondent's Exhibit C, in evidence. That game promotion is approved by the Florida Department of State pursuant to its authority in Section 849.094, Florida Statutes. It is a game promotion in which some but not all participants in fact pay a purchase price and, as part of the purchase, receive a game promotion ticket or piece. The rules of the game contained in Respondent's Exhibit C, reflect that of the 4,429,350, entry forms made available, approximately half are contained within specially marked packages of Anheuser-Busch beer products, which can only be obtained through purchases at stores holding alcoholic beverage licenses. However, one may also enter the "Bud Bowl '99" contest without a purchase and thus in accordance with Section 849.094(2)(e), Florida Statutes, the game promotion does not require, as a condition of entry into it, a fee, payment or proof of purchase. The Ebro game promotion did not award prizes greater than $5,000.00. Thus, unlike the "Bud Bowl '99" game promotion, it did not have to meet applicable requirements for a game promotion offering prizes in excess of such value, including registration with the Florida Secretary of State. It did, however, share the same common requirements as the "Bud Bowl '99" promotion, which is that any entry fee, payment or proof of purchase as a condition of entering the game promotion was not required. Mr. Hess, who testified at hearing for the Respondent, paid $7.48 for a twelve-pack of Anheuser-Busch beer, which contained a "Bud Bowl '99" sweepstakes game promotion ticket therein. He did so without that game promotion being in violation of Section 849.094, Florida Statutes, as determined by the Secretary of State in registration of that promotion. Similarly, Agenct Lee paid $2.00 to enter the Ebro Greyhound Track, and in doing so acquired no more or no less right and opportunity to participate in the Ebro game promotion than did the majority of patrons who entered without having to pay an admission fee. The rules of the "Bud Bowl '99" sweepstakes game promotion submitted to or approved by the Department of State clearly reflect that approximately 50% of entry fees would be contained within Anheuser-Busch product packages which can only be obtained by purchase. The remaining 50% of the entries were made available without a purchase requirement.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record and the pleadings and argument of the parties, it is RECOMMENDED: That the Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco enter a final order dismissing the amended administrative action against Personal Investments, Inc. DONE AND ENTERED this 31st day of March, 1999, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of March, 1999. COPIES FURNISHED: Harold F. X. Purnell, Esquire 210 South Monroe Street, Suite 420 Tallahassee, Florida 32301 Bart Schneider, Esquire Department of Business and Profession Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007 Deborah R. Miller, Director Division of Alcoholic Beverages And Tobacco Department of Business and Profession Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007 Lynda Goodgame, General Counsel Department of Business and Profession Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007
The Issue Whether Respondent violated Section 112.3148(3), Florida Statutes, by committing the acts alleged in the Order Finding Probable Cause and, if so, what penalty is appropriate.
Findings Of Fact Respondent, John Pollet (Pollet), served continuously as Mayor of Kissimmee from November 1, 1991, until he was suspended in 1995. As Mayor, Pollet was a voting member of the City Commission and signed contracts the city entered. At all times relevant to the instant case, George Geletko was employed as the Municipal Marketing Manager with Waste Management, Inc. Mr. Geletko's primary responsibility was to make sure that contracts between Waste Management, Inc., and its municipal customers were properly administered. Waste Management, Inc., had a contract with the City of Kissimmee to provide waste disposal services that was scheduled to expire in 1994. However, on September 6, 1994, the City of Kissimmee renewed its contract with Waste Management, Inc. Mr. Geletko was responsible for administering Waste Management's contract with the City of Kissimmee and was the contact person between Waste Management, Inc., and the City of Kissimmee. As the Municipal Marketing Manager for Waste Management, Inc., Mr. Geletko sought to influence or encourage the Kissimmee City Commission and Pollet to do business with his company. In order to accomplish this, Mr. Geletko, in his position with Waste Management, Inc., took actions that directly or indirectly furthered or communicated his intention to influence or encourage the Kissimmee City Commission and Pollet to do business with Waste Management, Inc. In the spring of 1994, during a telephone conversation, Pollet asked Mr. Geletko if Waste Management, Inc., had any tickets to an Orlando Magic basketball game. Mr. Geletko did not respond directly to Pollet's inquiry, but stated that "whatever we did, we would have to be in compliance with all ordinances and the State Code of Ethics." Pollet told Mr. Geletko that he would get back with him. However, no further inquiry regarding Orlando Magic tickets was made by Pollet to Mr. Geletko. At the time Pollet asked about Orlando Magic basketball tickets, he believed Mr. Geletko had taken former City Commissioner Richard Herring to a Magic game at some point prior to his inquiry. Pollet testified that the inquiry regarding Orlando Magic basketball tickets was made based on personal political considerations involving former City Commissioner Herring, who was sometimes an ally and sometimes a foe of Respondent in matters relating to City politics. However, Pollet gave no such explanation to Mr. Geletko during their conversation involving Orlando Magic basketball tickets. Based on Pollet's inquiry, Mr. Geletko felt that Pollet was asking him for tickets to the Orlando Magic game. Mr. Geletko, as a representative of Waste Management, Inc., gave gifts, including golf games and meals, to Pollet both before and after Respondent asked him about the Orlando Magic Tickets. Pollet's approach to Mr. Geletko was a solicitation for tickets. At all times relevant to the instant case, Charles Voss was a vice president with Camp, Dresser, and McKee, an environmental engineering firm. Camp, Dresser, and McKee had two contracts with the City of Kissimmee to provide engineering services. The City of Kissimmee and Camp, Dresser, and McKee entered into one such contract on November 2, 1993. Mr. Voss was responsible for marketing Camp, Dresser, and McKee's services to the City of Kissimmee. Mr. Voss sought to influence or encourage the Kissimmee City Commission and Pollet to do business with Camp, Dresser and McKee. To this end, Mr. Voss took actions that directly or indirectly furthered or communicated his intentions to influence or encourage the Kissimmee City Commission and Pollet to do business with Camp, Dresser, and McKee. In March 1993, Pollet called Mr. Voss and asked him if Camp, Dresser, and McKee had any tickets to the Nestle Invitational Golf Tournament. Mr. Voss told Pollet that his firm did not have tickets to the 1993 Nestle Invitational Golf Tournament. Based on Respondent's question, Mr. Voss thought Respondent was asking him for tickets to the golf tournament. Pollet testified that he asked about the passes because he wanted to know if Mr. Voss was going to attend the tournament. According to his testimony, Pollet thought that if Mr. Voss were going to the golf tournament, they could meet there. Notwithstanding his testimony, Pollet never asked Mr. Voss whether he was going to the tournament. In both 1994 and 1995, Pollet accepted passes to the Nestle Invitational Golf Tournament as gifts from Mr. Voss and Camp, Dresser, and McKee. Mr. Voss gave these golf tournament passes to Pollet because Pollet expressed an interest in the tournament in 1993. Pollet did not pay for the golf tournament passes he received from Mr. Voss in 1994 and 1995. Mr. Voss, as a representative of Camp, Dresser, and McKee, had given Pollet various gifts in the past. Except for partial payment for certain tickets, Pollet has never paid for any of these gifts. Respondent's approach to Mr. Voss was a solicitation for tickets to the 1993 Nestle Invitational Golf Tournament. Respondent admits he has accepted gifts from both Waste Management, Inc., and Camp, Dresser, and McKee.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order and Public Report be entered finding that Respondent, John Pollet, violated Section 112.3148(3), Florida Statutes; imposing a civil penalty of $1,000.00 per violation; and issuing a public censure and reprimand. DONE and ENTERED this 1st day of November, 1996, in Tallahassee, Florida. CARLOYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-647 Filed with the Clerk of the Division of Administrative Hearings this 1st day of November, 1996. COPIES FURNISHED: Eric S. Scott, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Mark Herron, Esquire 216 South Monroe Street Tallahassee, Florida 32301 Bonnie Williams, Executive Director 2822 Remington Green Circle, Suite 101 Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Phil Claypool, General Counsel 2822 Remington Green Circle, Suite 101 Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Kerrie J. Stillman Complaint Coordinator Post Office Drawer 15709 Tallahassee, Florida 32317-5709
The Issue Whether the respondent is guilty of the violations alleged in the Notice of Intent to Impose Administrative Fine, and, if so, the amount of the fine which should be imposed.
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 is the state agency charged with the administration of sections 501.012-.019, Florida Statutes, and is responsible for registering health studios. The Division of Consumer Services carries out this function. Mr. Beattie and his brother, Tim, are owners of the Paradise Gym, a health studio located at 1236 South Dixie Highway, Coral Gables, Florida. The gym has been in business since 1976 and in its present location for over six years. The Department contacted the Paradise Gym several times in 1992 regarding the statutory requirement that it register as a health studio. The gym continued to operate without being registered, however. In the spring of 1993, the Department obtained an injunction from the circuit court in Dade County, Florida, barring the gym from operating until it registered with the Department. On July 9, 1993, the Department conducted an on-site undercover investigation at the Paradise Gym and found that it was operating as a health studio in violation of the injunction. After the Department scheduled a contempt hearing, the Paradise Gym finally submitted a completed registration application. The gym was registered with the Department on December 6, 1993, and assigned registration number 02370. The annual registration for the Paradise Gym expired on December 6, 1994. The Department sent the Paradise Gym a registration packet enclosed with a letter dated October 24, 1994. The packet contained a registration form, and the letter contained instructions to send the completed form to the Department "together with a copy of the membership contract currently in use and the annual registration fee of $300." (Emphasis in original.) The Department did not receive a response to the October 24 letter. In a letter dated December 2, 1994, the Department notified the Paradise Gym that it must send the completed registration form and other documents within fifteen days of the date of the letter. The December 2 letter contained the warning that the gym must immediately cease "all non-exempt activities" until it came into compliance with the statutes governing health studios. The Department did not receive a response to the December 2 letter. On January 24, 1995, an employee of the Department telephoned Mr. Beattie and was told that the registration packet would be sent by January 27, 1995, and that the application had not been mailed sooner because the gym's offices had flooded and suffered serious damage. The Department did not hear from Mr. Beattie until February 20, 1995, when it received the Paradise Gym's Application for Registration; Affidavit of Exemption from the requirement that a bond, Certificate of Deposit, or letter of credit be posted; and check in the amount of $300 for the annual registration fee. These documents were signed by Mr. Beattie on February 6, 1995. The gym's membership contract was not included with the registration materials, and the Department sent a letter to the Paradise Gym dated February 21, 1995, stating that the Department could not process the application for registration until it received a copy of the contract. The Department received no response to the February 21 letter. In a letter dated March 21, 1995, the Department notified Mr. Beattie that the application for registration of the Paradise Gym was denied because the Department had not received a copy of the gym's membership contract. The letter contained a Notice of Rights and was sent via certified mail. The letter was received at the Paradise Gym, and the return receipt signed, on March 27, 1995. The Department did not receive a response to the letter, either in writing or by telephone, and the denial became final agency action 21 days after it was received at the gym. On May 5, 1995, an investigator for the Department conducted an on- site undercover inspection of the Paradise Gym. The inspection revealed that the gym was operating as a health studio and was offering memberships payable annually or by down payment and monthly installments. On June 13, 1995, the Department issued the Notice of Intent to Impose Administrative Fine at issue in this case and sent it to Mr. Beattie via certified mail. The notice included an offer to settle the matter upon payment of an administrative fine of $3500. The Department did not receive a response to the notice and did not receive a return receipt indicating that the notice had been delivered. In late July, 1995, Douglas Jennings, an employee of the Department, telephoned Mr. Beattie to inquire about his failure to respond to the notice. Mr. Beattie stated that he had not received it, and Mr. Jennings sent him a copy via certified mail. The notice was received at the Paradise Gym on August 3, 1995, and the Department granted the request for hearing dated August 21, 1995. On September 19, 1995, Mr. Jennings received a telephone call from Mr. Beattie in which he asked if the Department would drop the fine; on September 22, 1995, the Department received a copy of a document bearing the logo of the Paradise Gym and entitled "Waiver and Release from Liability and Indemnity Agreement." The contents of this document were substantially different from the contents of the document of the same title submitted in 1993 with the gym's initial application for registration, although the consumer disclosures required by statute remained the same. At hearing, Mr. Beattie explained his failure to submit the Paradise Gym's membership contract until September 22, 1995. He asserted on the one hand that there was no "membership contract" for the gym, just a waiver of liability, and on the other hand that the Department had a copy of the Waiver and Release from Liability and Indemnity Agreement he provided in 1993 with the gym's original application for registration. He did not explain why the Paradise Gym continued to operate after being notified in December 1994 that the gym could not continue operating until it had registered with the Department or why the gym continued to operate after March 21, 1995, when its application for registration was denied. The Department has proven by clear and convincing evidence that the Paradise Gym operated as a health studio without being registered with the Department.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the Department of Agriculture and Consumer Services enter a Final Order finding that the Paradise Gym violated section 501.015(1) by operating without being registered with the Department and imposing an administrative fine in the amount of $100. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 11th day of April 1996. PATRICIA HART MALONO 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 11th day of April 1996.
The Issue Whether Respondent, or his agent or employee, possessed, or permitted someone to possess, at or in the licensed premises, alcoholic beverages not authorized by law to be sold by Respondent. Whether Respondent, or his agent or employee, allowed patrons to gamble at card games, contrary to Section 849.01, Florida Statutes. Whether Respondent, his agent or employee allowed patrons to possess and consume marijuana and crack cocaine on the licensed premises.
Findings Of Fact Respondent Dennis Maxwell holds DABT License number 45-00933, and owns and operates the Club 21 in Leesburg, Florida. License number 45-00933 is a series 2-COP license, authorizing the sale and consumption of beer and wine only on the premises. Mr. Maxwell has been in business as the Club 21 at 945 East Main Street in Leesburg, Florida, since approximately February 1992. Club 21 is frequented by a predominantly young (early 20's), black clientele, not unlike a number of other bars in Leesburg. Club 21, however, has been unique in the severity of problems experienced by the Leesburg Police in attempting to maintain peace and lawfulness. Upon information that the service of alcoholic beverages to minors has been occurring, agents of DABT, with assistance from local law enforcement, entered Club 21 in an undercover capacity at approximately 10:00 p.m. on Friday, January 15, 1993. They discovered open and obvious violations of both the beverage law and Florida criminal law, specifically gambling (card game for money), and unauthorized liquor being stored and consumed on the premises. On January 15, 1993, at 10:00 p.m., a high stakes card game was in progress in a somewhat separate area of the premises just to the left of the entrance. At a table with a group of men playing cards, was a pile of currency, with a large "pot" of money in the middle of the table. The pot was collected by the winner of each hand. Additionally, other persons standing around the seated players were placing separate wagers in connection with the ongoing game. The game was occurring in plain view of the patrons in the bar, and anyone entering or exiting the premises. The card game continued for approximately 20-30 minutes prior to uniformed law enforcement officers entering the premises. The Respondent was present at Club 21 during that entire night, and admitted to having permitted the card games to occur, but denied that gambling was occurring. Mr. Maxwell, likewise, admitted that he would recognize the commonly understood circumstances of a card game for money by the money set out in front of each card player, and the "pot" of money in the middle of the table. Although he observed the same game occurring as testified to by other witnesses, he does not recall seeing the money on the table. Respondent further testified that the area of the bar known as the "game room" was often used for card games, but that he had never been aware of gambling occurring in connection with such games. Respondent's testimony is not credible in light of the circumstances. The licensee did permit persons to play for money at a card game on his premises. During the course of the DABT operation on January 15, 1993, several bottles of unauthorized liquor was observed in plain view in the kitchen of Club The liquor consisted of one unsealed 1.75 liter bottle of Seagram's Dry Gin, one unsealed .750 liter bottle of Seagram's dry Gin, and one unsealed pint bottle of Canadian Mist Whiskey. Petitioner was aware that the liquor described was in fact in the kitchen. As to the larger bottle of gin, Mr. Maxwell contended that it belonged to one of his employees, Karl Welcome, who was celebrating his birthday that night, and had stopped by the premises to engage in a celebratory toast with his friends and coworkers. Mr. Welcome testified to that effect on direct examination, but admitted on cross that his birthday is actually May 18, not January 15, and that he had made up that story originally for the benefit of the officer who had found the liquor. As to the remaining bottles of liquor, Respondent claimed that he had confiscated them from patrons earlier that afternoon, and placed them in the kitchen because he was too busy to dump them out. In light of Mr. Maxwell's further testimony that there is hardly any business at Club 21 in the afternoon, and he does not have much to do until nighttime, his contention is not credible. Petitioner knew that the liquor was in the kitchen, and took no meaningful action to correct that situation. During the course of their stay in an undercover capacity inside Club 21, two witnesses observed what they believed was marijuana being openly smoked by patrons in the area of the bar itself on the premises. One witness described two patrons openly sharing what appeared to be a marijuana joint while actually seated at the bar. The "joint" was passed back and forth openly and in plain view of two bartenders who were standing directly in front of these patrons, and who actually brought beer to, and took money from, these patrons while they were openly smoking a joint. Two witnesses smelled an odor which is commonly associated with the smell of marijuana burning in the area of the bar during the entire time they were there. From the smell, they testified that in their opinion it was obvious that other patrons besides those seated directly at the bar were smoking as well. Officers of the Leesburg Police Department arrested a patron of Club 21 on the premises for possession of cocaine on the evening of January 15, 1993. Officer Mullin field tested the substance and testified that both his field test and the laboratory analysis conducted on it confirmed that it was cocaine. The possession charges are the subject of an ongoing criminal case. Respondent had been visited by a DABT Special Agent during the fall of 1992 on a routine call. At that time, unauthorized liquor was found of the same variety as was found in January 1993. A record of the discovery was made but a notice of violation was not issued. Rather, the seriousness of unauthorized liquor on the premises was discussed and Mr. Maxwell had been warned not only about that particular violation, but about the dangers of drug use on the premises, and related problems. Mr. Maxwell recalled the visit and the warning, and testified that Agent Hurlburt had been honest and forthright with him, and had emphasized the risk of an enforcement action against a licensee for allowing violations of law to occur on a licensed premises.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent's license number 45-0093 be suspended for a period of twenty (20) days, and that Respondent pay a civil penalty in the amount of $1,000.00. DONE AND ENTERED this 22nd day of July, 1993, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of July, 1993. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's proposed findings of fact. Accepted in substance: paragraphs 1, 2, 3, 6, 7, 8, 9, 10(in part), 13, 14 Rejected as immaterial, irrelevant or subsumed or argument: paragraphs 4, 5, 10(in part), 12(in part) Rejected as against the greater weight of evidence: paragraphs 12(in part) COPIES FURNISHED: John F. Gilroy, Esquire Assistant General Counsel Department of Business and Professional Regulation Northwood Center 1940 North Monroe Street Tallahassee, Florida 32399-1007 Dennis L. Maxwell Post Office Box 53 Eustis, Florida 32727 John Harris Acting Director Division of Alcoholic Beverages and Tobacco Northwood Center 1940 No. Monroe Street Tallahassee, Florida 32399-0792 Jack McRay General Counsel Department of Business and Professional Regulation Northwood Center 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether proposed rules 61D-7.021(5)(f) and 61D-7.021(5)(g) are invalid exercises of legislative delegated authority pursuant to Subsection 120.52(8), Florida Statutes (2004),2 and, if so, whether Petitioner is entitled to an award of costs and attorney's fees pursuant to Subsection 120.595(2), Florida Statutes.
Findings Of Fact Calder is a Florida corporation and a pari-mutuel permitholder permitted and licensed by the Department pursuant to Chapter 550, Florida Statutes. Calder seeks to challenge proposed amendments to Florida Administrative Code Rule 61D-7.021. Specifically, Calder challenges Subsection (5)(f), as noticed in the Florida Administrative Weekly, Volume 30, Number 32, August 6, 2004, and Subsection (5)(g), as noticed in the Florida Administrative Weekly, Volume 30, Number 21, May 21, 2004.3 The challenged amendments shall be referred to as the "Proposed Rules." The Proposed Rules provide: For tickets cashed more than 30 days after the purchase of the ticket, the ticket may not be cashed at any type of patron- operated machine or terminal. The totalisator system must be configured to instruct patrons on how to cash the ticket. The totalisator system must have the ability to identify such tickets and indicate to a teller that the ticket falls within this category. Calder is a licensed and permitted pari-mutuel facility which sells tickets and uses totalisator machines, and the Proposed Rules would govern the operation of such facility. The Proposed Rules have the effect of directly regulating the operation of Calder's pari-mutuel facility, and, as such, Calder is substantially affected by the Proposed Rules. The parties have stipulated that Calder "may properly challenge both Proposed Rules 61D-7.021(5)(f) and 61D-7.021(5)(g)." A pari-mutuel ticket evidences participation in a pari-mutuel pool. A winning or refundable pari-mutuel ticket belongs to the purchaser and may be claimed by the purchaser for a period of one year after the date the pari-mutuel ticket was issued. An "outs" or "outs ticket" is a winning or refundable pari-mutuel ticket which is not redeemed. If a ticket remains unclaimed, uncashed, or abandoned after one year from the date of issuance, such uncashed ticket escheats to the state unless the ticket was for a live race held by a thoroughbred permitholder such as Calder, in which case the funds are retained by the permitholder conducting the race. A totalisator machine is "the computer system used to accumulate wagers, record sales, calculate payoffs, and display wagering data on a display device that is located at a pari- mutuel facility." § 550.002(36), Fla. Stat. The Department was prompted to begin the rulemaking process for the Proposed Rules by two major cases involving fraud, one Florida case and one national case. The Florida case involved two totalisator employees named Dubinsky and Thompson, who allegedly accessed outs ticket information in the totalisator's central computer system, counterfeited outs tickets based on the information, and cashed the tickets at self-service machines at two pari-mutuel wagering facilities. The fraudulent conduct involved approximately $13,000. In the Florida case the fraudulent tickets were cashed several months after the tickets were said to have been issued. The fraud came to light when the ticketholder who held the true ticket attempted to cash the ticket, but could not because the fraudulent ticket had been cashed. The national case also involved a totalisator employee who cashed fraudulent outs tickets. In the national case, the fraudulent tickets were cashed less than 30 days after the date the tickets were purportedly issued. The purpose of the Proposed Rules is to deter the cashing of fraudulent tickets. The Department received comments from AmTote International, a totalisator company, at the rule workshop held during the rulemaking process and received written comments submitted by AmTote International after the workshop, indicating that the majority of tickets are cashed within six to nine days after the date of issuance. The older a ticket gets the less likely it becomes that the ticket will be cashed, and the less likely that it becomes that the cashing of a fraudulent ticket would be revealed by the true owner attempting to cash the ticket. Staff of the Department felt that by requiring that outs tickets older than 30 days be cashed by a live person, a thief would be deterred because he would be dealing with a person rather than a machine. The only thing that the self- service machine requires to redeem a ticket is a bar code, so it would be possible to submit a ticket containing nothing but the bar code and receive a voucher which could be submitted to a teller for money.4 If the fraudulent ticket looks different in anyway from a valid ticket, a teller may be able to spot the difference and question the transaction. Calder argues that the way to deter the fraud which has occurred is to stop totalisator employees from being able to print fraudulent tickets. However, the Department is also concerned about computer hackers potentially getting into the computer system which contains the outs tickets numbers and copying the bar code which could be submitted to a self-service machine. By regulating the method of cashing outs tickets, the Department is attempting to deter fraud by totalisator employees and others who may be able to access outs tickets information which could be used in producing counterfeit tickets. During the rule making process, the Department held a workshop, received written comments from the public, and held a hearing to receive comments from the public after the Proposed Rules were first noticed. The Department considered the comments it received and modified the Proposed Rules as noticed in the Notice of Change published on August 6, 2004, to accommodate some of the comments. Calder did not submit a good faith, written proposal for a lower cost regulatory alternative within 21 days after the notice of the Proposed Rules was published in the Florida Administrative Weekly on May 21, 2004, or after the Notice of Change was published.
Findings Of Fact At all times pertinent to the issues considered at this hearing, Respondent, Dale's Package Store and Lounge, Inc., was issued 6-COP alcoholic beverage license No. 20-0012, which permits the on-premises consumption or sealed package sales of beer, wine, and liquor and the carry out sales of open malt or vinegar spirits, but not mixed drinks. On May 13, 1983, Investigator Robert W. Cunningham visited the licensed premises based on an anonymous phone call he had received at home to the effect that a lottery was being conducted there. When he entered the lounge, he saw a poster sitting on the first table inside the door. This poster contained a list of items of merchandise or services to be given as prizes and a notation of the prices for tickets. While he was looking at this display, he was approached by a patron, Edward Hanson, who asked if Cunningham wanted a ticket. When Cunningham said he did, Hanson went to the bar, where he spoke with Cindy, the bartender, and came back with a large roll of tickets, telling Cunningham to take as many as he wished. Cunningham took three and paid the $2 which the poster indicated was the price for the tickets. Half of each ticket was put in the box for the drawing. After the ticket transaction, Cunningham went up to Cindy and asked her who was in charge. When told it was Mickey (Naomi Hunt), he went into the back room, where he found her and told her it was an illegal lottery that had to stop. He also talked at that time with Susan Roberts, a representative of the local Multiple Sclerosis Foundation chapter for whom the lottery was being conducted. Ms. Roberts advised Cunningham she had discussed the matter with one of the local assistant state attorneys, who said it was all right, but she could not recall his name. Cunningham had advised Naomi Hunt to call Mr. Eggers initially, and Eggers said he would come down. Cunningham also called his district supervisor, Capt. Caplano, because, due to the size of the crowd in the bar at the time, between 200 and 250 people, he felt he needed a backup. Caplano agreed to come down to the lounge, as well. Caplano also advised Cunningham that the procedure was an unlawful lottery and the tickets and money should be seized. When Eggers got there, he told Cunningham that the entire activity was for the benefit of the Multiple Sclerosis Foundation and that his employees had been out soliciting the donation of the prizes for months. Respondent admits the conduct of the operation as the Roadhouse Inn's participation in the fund-raising campaign of the North Florida Chapter of the Multiple Sclerosis Foundation. Respondent has been approached by that agency with a kit of fund-raising activities and ideas. Before participating in the lottery, Mr. Eggers asked and was advised by both Ms. Hunt, his employee, and Ms. Roberts of the Foundation that they had inquired into and were advised of the project's legality. If the law was violated, it was done without criminal intent and without malice. A well-intentioned effort to do some good was in error. It should be noted, however, that in January 1977, this licensee was cited by Petitioner's Agent R. A. Boyd for operating a bowling machine on the premises. If the customer bowled a high score on the machine, he or she would win something, such as a drink or a snack. This was considered gambling by Petitioner, however; and upon issuance of the citation, Respondent immediately stopped the activity. No charge was laid against the licensee for that activity. Several days after Cunningham closed down the lottery, on May 19, 1983, Beverage Officer Reeves went to the licensed establishment based on a complaint received that alcoholic beverages were being served by the drink at the curb. He went to the drive-in window of the Inn and ordered a scotch and water from Naomi. She brought him a drink in a plastic cup. From his experience, he recognized the substance as scotch and water. After getting the drink, he parked the car and went inside, where he talked with Naomi and Eggers. They indicated they did not know it was illegal to sell a drink this way. Eggers indicated at the hearing that he thought that since he could sell open beer drinks out the drive-in window, he could do the same with mixed drinks. He does not have any copy of the beverage laws, thought he was operating legally, and has been doing it without objection since 1977. Since Reeves' visit, the sale of distilled spirits by the drink through the window has ceased.
