The Issue The issue for consideration in this case is whether Petitioner was discriminated against in employment by Respondent because of his race.
Findings Of Fact At all times pertinent to the issues herein, Respondent, Tredit Tire & Wheel Co., Inc., operated a specialty tire and wheel assembly facility in Plant City, Florida. Petitioner was employed by Tredit at that facility. On October 10, 1995, Ronald Pike, Tredit’s vice- president for operations, paid a routine visit to Tredit’s Plant City facility. Somewhat concerned over the apparent inadequate level of production and higher costs being experienced there, Mr. Pike called a meeting of the entire 15-member staff. During the course of the meeting, in an attempt to determine, if possible, the reason for the deficiency, Mr. Pike asked questions of each member of the staff. Mr. Lee, who recalls he had nothing to say at the time, claims Pike’s insistence on his participation in the discussion constituted "picking on him." Mr. Pike denies picking on Petitioner. He contends he was trying to get some input from the hourly employees, and insists he questioned all of them even-handedly. He asked each for input, indicating their jobs would not be jeopardized by their answers. During the meeting Pike advised the associates that both their attitudes and their production must improve. Though Petitioner denies it, Mr. Pike indicated that Petitioner claimed at that time there was not enough work to give him a 40-hour week, and he was stretching out his jobs in order to make them take long enough to ensure he could work a 40-hour work week. Mr. Bauer, also a Tredit executive, is of the opinion this manipulation is neither necessary nor possible, considering the facility’s work practices. Tredit creates wheel assemblies for specialty vehicles, utilizing tires and wheels manufactured by others. Though its Florida business is high volume, due to the nature of the product and the intense competition, the profit margin is low, and the company has to react to order cycles which require immediate response. However, Mr. Bauer opined there was always enough to do to make sure the hourly employees were always productively employed. No independent evidence was presented in support of the position taken by either party on this point, however. Once the meeting was completed, Mr. Pike and Mr. Bauer left. The facility was being managed at the time by Carol Suggs. At the end of the day after Mr. Pike held his meeting with the staff, Ms. Suggs called for Petitioner to meet with her. The request was communicated through Mr. Longo. According to Ms. Suggs, Petitioner was admonished about his working habits and warned regarding his attitude on the job. She claims he then became disrespectful and quit. A short while later, a payroll accounting document was prepared reflecting Petitioner had been discharged on the day of the conference with Ms. Suggs. Petitioner categorically denies having quit the job as Ms. Suggs indicates in her sworn affidavit of August 22, 1996. He claims to have taken pride in his work and to have been so upset by his termination that he actually cried as a result. Ms. Suggs, on the other hand, contends that Petitioner did not put forth appropriate effort on the job. She claims that not only were the hourly employees getting a full 40-hour week, but also performing overtime, and yet the required amount of material was not being produced. Petitioner rebuts this contention, claiming adequate inventory was prepared. Nonetheless, as a result of what she perceived as Petitioner’s attitude and performance shortcomings, on October 11, 1995, at her meeting with Petitioner the day after Mr. Pike’s visit, Ms. Suggs gave him a written employee warning notice. Petitioner admits to having signed this notice as indication he received it, but denies he agreed with its contents. No other notice of dismissal action was executed by Ms. Suggs except the payroll change notice reflecting Petitioner’s dismissal on October 13, 1995, two days following the meeting she had with Petitioner. Because this earlier action, the warning, does not reflect Petitioner was terminated, but within two days thereof he was taken off the payroll, and because Ms. Suggs’ testimony was credible, it is found that Petitioner’s reaction to the warning was as described by her and was the basis for his dismissal. Tredit had 15 employees at the Plant City facility when Petitioner was employed there. Of this number, four were female and eleven were male. Two of the males were black. After Petitioner was terminated, the employee census was the same except for one fewer black employee. At the time of the hearing, Tredit employed four individuals in the Plant City facility’s office, all of whom were white; and nine warehouse employees, of whom four were white, one black, and two Hispanic. No evidence was presented to establish that Petitioner’s termination from employment with Respondent was the result of his race.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Florida Commission on Human Relations enter a Final Order dismissing Raymond T. Lee’s Petition for Relief filed against Tredit Tire & Wheel Co., Inc. DONE AND ENTERED this 6th day of January, 1999, in Tallahassee, Leon County, Florida. ARNOLD H. POLLOCK 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) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of January, 1999. COPIES FURNISHED: Ramon T. Lee, pro se 832 Augusta Street Lakeland, Florida 33805 Antonio Faga, Esquire 375 Twelfth Avenue South Naples, Florida 34102 Sharon Moultry, Clerk Commission on Human Relations 325 John Knox Road Building F, Suite 249 Tallahassee, Florida 32303-4149 Dana Baird, General Counsel Commission on Human Relations 325 John Knox Road Building F, Suite 249 Tallahassee, Florida 32303-4149
The Issue The issues in this case are those announced by the Administrative Complaint brought by the Petitioner against Respondent claiming that the dirt drive entrance to the Ugly Duckling Rent-A-Car at 2555 U.S. 1 South, St. Augustine, Florida, is an unpermitted drive connection used for commercial purposes. It is further alleged that it is, by its nature, a residential driveway that is used in a commercial endeavor and that it does not meet design standards. The stated authority for these accusations are Sections 335.187 and 335.1825, Florida Statutes.
Findings Of Fact On October 2, 1979, Leroy E. Wall, Jr., and his wife Freda purchased the property which is in dispute in this case from Alex Hein and Virginia Hein, his wife. That property is located in St. Johns County, Florida, and its dimensions include approximately 300 feet of frontage on U.S. 1, also known as State Road 5. The frontage runs roughly north and south. The east-west depth of the property is approximately 350 to 360 feet. U.S. 1, for about 20 years, has been a four-lane road at this location with a median separating the northbound and southbound lanes. The property in question is on the western side of U.S. 1 and the southbound lane of that highway passes in front of the property. Petitioner holds a right-of-way from the white line on the shoulder of the road 38 feet inward. It has maintenance responsibility for a five foot strip inward from that white line. At the time Mr. Wall and his wife purchased the property in question, there was a residence located on the property with a free standing garage. Respondent's Composite Exhibit No. 1 admitted into evidence contains a copy of the warranty deed from the Heins to Mr. Wall and his wife. It also shows a description of the property through a survey done on November 14, 1984. It was the intention of Mr. Wall to have the property rezoned from residential to commercial. In addition, he had intended to build a commercial building and to seek approval of Petitioner for a driveway permit associated with that commercial venture. That driveway permit was approved on November 1, 1979. A copy of the driveway permit may be found in Petitioner's Composite Exhibit No. 3 admitted into evidence. The date of approval of that permit is November 1, 1979. The driveway permit and a small drawing reflect the two paved driveways associated with the intended commercial building. It shows frontage in the amount of 165 feet as opposed to the 300 foot expanse that constituted the entire parcel which Mr. Walk and his wife had bought from the Heins. Nonetheless, Mr. Wall is confident that the Petitioner was made aware of the entire 300-foot expanse when he sought the permit. His recollection of those events is credited. As reflected in Respondent's Composite Exhibit 1, a report and recommendation was made by the zoning board suggesting to the Board of County Commissioners that they approve the rezoning of the subject property. That recommendation dates from December 10, 1979. The zoning change was effected. The residential building and detached garage was used by a tenant of Mr. Wall's who was in the import business. Subsequent to that time Vernard W. Fletcher, Jr., who owns Ugly Duckling Rent-A-Car became a tenant at that location on July 1, 1983. The commercial building that had the two paved drives permitted on November 1, 1979 has four tenants. The dirt driveway which enters U.S. 1 from the residence with the detached garage has been there from the time of the purchase by the Walls from the Heins until the present. Mr. Fletcher has described the peak usage of that driveway as 20 trips per day in 1987. In the period July 1, 1988, through June 15, 1989, the number of trips has dropped to 15 cars a day. Mr. Fletcher's explanation of the number of trips is accepted. July 1, 1988, through June 15, 1989, describes the period from the advent of Section 335.187, Florida Statutes, (1988), until the Administrative Complaint was brought against the Respondent on June 15, 1989, as described in the statement of the issues. As Mr. Fletcher and Mr. Wall both explain, the dirt drive is used mostly for ingress. One of the paved drives associated with the commercial building is used for egress onto U.S. 1. On March 16, 1989, Respondent received notice from the Petitioner that the dirt driveway was an unacceptable access point onto U.S. 1. This correspondence was received by Mr. Fletcher on March 17, 1989. It sets forth the same basis of concern as announced in the Administrative Complaint which was prepared on June 15, 1989. Marshall Sander who is a permit engineer for the Lake City District of the Petitioner testified at the hearing. Although he did not confirm in absolute terms the expectation of the Petitioner as to the type driveway that it would accept for permitting, it is clear that some other form of driveway than the present type is contemplated. Mr. Sander's remarks to Mr. Wall made it obvious that the Petitioner is more likely to look with favor on a paved driveway with deceleration lane than any other form of improvement. This would cost as much as $15,000. A not-to-scale drawing of the immediate area is found as Petitioner's Exhibit No. 5. It depicts the commercial building with its two paved driveways and the Respondent's site with its dirt driveway. It also shows the approximate location of a shopping plaza which was under construction and expected to open in October 1989, which is 500 feet north of the property in question. That shopping center is located on the same side of the road as the property that is at issue. There is a traffic signal at Lewis Point Road and U.S. 1, the location of the new shopping center. That traffic control device protects automobiles which are exiting the location of the Respondent and the commercial properties adjacent to that location which are leased by Mr. Wall. Petitioner's Exhibit No. 7 is a series of photographs which depict the site in question with descriptions of the exact nature of those photographs specifically set out. Petitioner's Exhibit 8 also contains a series of photographs. The first photograph is one of Moultrie Plaza which has a Publix food store and 14 other tenants with the possibility of 8 additional tenants in the future. This shopping plaza opened in January 1989 and is approximately two miles south of the Respondent's business location. The shopping plaza which is immediately north of the location in question has a Food Lion grocery store, a McDonald's restaurant, a bank and several other retail shops. It is located on the same side of U.S. 1. Petitioner's Exhibit No. 9 contains other pictures associated with the basic location of the business in question. Mr. Sander's concern about the use of the dirt driveway in a commercial application relates to the edge of pavement drop-off and the formation of ruts that develop with the kick-out by wheels that spin as cars are leaving or pulling into the location and under braking, and the fact that they slide and move the gravel material in the dirt driveway. In his analysis this creates a possible safety hazard. There is no evidence that any accidents have ever occurred because of the use of this dirt driveway or any safety problem associated with its use. Mr. Fletcher and Mr. Wall have no recollection of such events and the Petitioner presented no indication that accidents or other safety problems had occurred. Mr. Sander also was of the opinion that Mr. Wall should have revealed the existence of the additional 135 feet of frontage when the 165 feet of frontage associated with the commercial building was set out in the attachment to the permit for the two paved driveways that have been mentioned before. Again, the facts are found that the 300 foot frontage was made known to the Petitioner based upon the testimony given by Mr. Wall. Section 385.187(1), Florida Statutes (1988), provides that unpermitted connections to the state highway system, to include U.S. 1, in existence before July 1, 1988, which had been in continuous use for a period of one year or more do not require permits. The dirt driveway was in existence before July 1, 1988, and was in continuous use for a period of one year or more. However, that same section speaks in terms of the ability of the Petitioner to require a permit in those instances where the connection undergoes a significant change in the use, design, or traffic flow of the connection or of the state highway that provides access. Beyond July 1, 1988, the use, design, or traffic flow of the driveway connection has not significantly changed. The use and design of the state highway has not significantly changed. The point of dispute is whether the traffic flow on that state highway has changed in a significant way. Notwithstanding the existence of two residential developments known as St. Augustine South and St. Augustine Shores, the two shopping plazas that have been described and other activities in the general vicinity, it was not shown that the traffic flow had increased in a significant way beyond July 1, 1988, up until June 15, 1989, the point at which the administrative complaint was brought or for that matter up until the time of the final hearing. Moreover, as stated, there is no suggestion that the driveway has presented a safety hazard in that time frame, particularly not when taking into account the preference to use the paved drives associated with the commercial building in the egress. That usage is facilitated by the fact that some of the equipment that is being rented is brought up one of the paved driveway exits from an area behind the commercial building. This set of circumstances is considered in light of the fact that the traffic signalization at Lewis Point Road and U.S. 1 protects a person entering U.S. 1 southbound.
Recommendation Based upon the findings of fact and the conclusions of law, it is, RECOMMENDED: That a Final Order be entered which dismisses the Administrative Complaint. DONE and ENTERED this 19th day of December, 1989, in Tallahassee, Florida. CHARLES C. ADAMS, 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 December, 1989. APPENDIX CASE NO. 89-3898 Petitioner's Facts Petitioner's facts in paragraphs 1, 2, 3 and 4, are subordinate to facts found. Paragraph 5 is contrary to facts found. Paragraph 6 is accepted but it is not essential that it be found as a fact. Paragraph 7 is subordinate to facts found. Respondent's Facts Respondent has described facts it wishes to have found in two categories. Those categories are a preliminary statement of facts not in dispute and a category associated with the issues deemed to be in dispute. These suggested facts are subordinate too the facts found in the recommended order. COPIES FURNISHED: Charles G. Gardner, Esquire Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Frederick L. Rice, Esquire 5611 St. Augustine Road Jacksonville, Florida 32207 Ben Watts, Interim Secretary Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street Tallahassee, Florida 32399-0458
The Issue The issue in this case is whether Respondent, Ralph Battaglia, committed the offenses alleged in an Administrative Complaint issued by Petitioner, the Department of Business and Professional Regulation, and dated August 9, 2002, and, if so, the penalty that should be imposed.
Findings Of Fact The Department is charged with the responsibility for, among other things, the investigation and prosecution of complaints against individuals holding certificates as general contractors in the State of Florida. The Construction Industry Licensing Board (hereinafter referred to as the "Board"), is charged with the responsibility for, among other things, the disciplining general contractors for violations of Section 489.129, Florida Statutes (2001). At the times pertinent to this matter, Respondent, Ralph N. Battaglia, has been certified by the Board as a general contractor, having been issued license number CGC 41817. Mr. Battaglia was originally licensed on July 29, 1987. Mr. Battaglia was certified with the Board as doing business as "Intercontinental Construction Corp." (hereinafter referred to as "Intercontinental"). On or about December 30, 1999, Intercontinental and A. Richard Nernberg entered into an Agreement Between Owner and Contractor (hereinafter referred to as the "Mockingbird Trail Contract"),1 wherein Intercontinental agreed to construct a 4,288 square foot, one story, single-family residence with detached cabana on property owned by Mr. Nernberg; and Mr. Nernberg agreed; to pay Intercontinental $514,560.00. The Mockingbird Trail Contract was signed by Mr. Nernberg, Mr. Battaglia, individually, and Mr. Battaglia, as President of Intercontinental, twice. The Mockingbird Trail Contract did not include the written statement of consumer's rights under the Construction Industry Recovery Fund provided by Section 489.1425, Florida Statutes. The residence (hereinafter referred to as the "Mockingbird Trail Residence"),2 was to be constructed on property located at 225 Mockingbird Trail, Town of Palm Beach, Palm Beach County, Florida. 8 Between December 30, 1999, and January 12, 2001, Intercontinental was paid over $500,000.00 from the "Construction Account" of "A.R. Building Company" for the Mockingbird Trail Residence. A.R. Building Company is a fictitious name utilized by Mr. Nernberg and his wife for their business operations, which include, among other things, the construction and rental of multi-family housing. On or about June 7, 1999, Mr. Nernberg, Intercontinental, and Mr. Battaglia, individually, entered into a second Agreement (hereinafter referred to as the "Jamaica Lane Contract"),3 wherein Intercontinental agreed to construct a 4,290 square foot two-story, single-family residence for Mr. Nernberg; and Mr. Nernberg agreed to pay Intercontinental $500,000.00. The residence (hereinafter referred to as the "Jamaica Lane Residence"),4 was to be constructed on property located on Jamaica Lane, Town of Palm Beach, Palm Beach County, Florida. The Jamaica Lane Contract was amended on January 9, 2000, by a "1st Amendment to Jamaica Lane Agreement Dated June 7, 1999" (hereinafter referred to as the "Amendment"). The Amendment was entered into because the Town of Palm Beach had required an additional 340 square feet be added to the Jamaica Lane Residence, for which Mr. Nernberg agreed to pay Intercontinental an additional $38,420.00, raising the total purchase price under the Jamaica Lane Agreement, as amended, to $538,420.00. The Amendment was signed by Mr. Nernberg, Mr. Battaglia, individually, and Mr. Battaglia, as President of Intercontinental. Neither the Jamaica Lane Contract nor the Amendment included the written statement of consumer's rights under the Construction Industry Recovery Fund provided by Section 489.1425, Florida Statutes. Between October 29, 1999, and January 12, 2001, Intercontinental was paid over $560,000.00 from the "Construction Account" of "A.R. Building Company" for construction on the Jamaica Lane Residence. Beginning on January 12, 2001, all checks for the construction of the Mockingbird Trail Residence were made payable to Intercontinental and other entities jointly. Mr. Nernberg began making the checks payable jointly because Mr. Battaglia had informed him that he was having financial difficulties and was unable to pay his subcontractors. Therefore, future checks were made jointly payable in an effort to ensure that subcontractors were paid. On January 23, 2001, a lien was placed on the Mockingbird Trail Residence by Gulf Stream Lumber Company (hereinafter referred to as "Gulf Stream") in the amount of $50,391.00. A lien in the amount of $45,405.99 was placed on the Jamaica Lane Residence the same day by Gulf Stream. The liens were filed because Gulf Stream had "furnished labor, services or materials" provided "in accordance with "a contract with Intercontinental Construction . . . " for work on the Mockingbird Trail Residence and the Jamaica Lane Residence. Having paid in excess of the contract price (see finding of fact 19, infra ) for both residences, it is inferred that the funds owed to Gulf Stream which resulted in the liens were paid by Mr. Nernberg to Intercontinental. Mr. Nernberg continued making payments on the Mockingbird Trail Contract until May 23, 2001, and on the Jamaica Lane Contract, as amended, until May 18, 2001. Mr. Nernberg paid $50,000.00 to Gulf Stream Lumber Company in settlement of the liens on the two residences. Mr. Nernberg paid $658,778.47 on the Mockingbird Trail Contract and $758,640.92 on the Jamaica Lane Contract, as amended. Therefore, Mr. Nernberg paid $144,218.47 on the Mockingbird Trail Contract in excess of the agreed contract price and $220,220.00 on the Jamaica Lane Contract in excess of the agreed contract price. Some part of the amount paid by Mr. Nernberg in excess of the agreed contract prices was due to change orders. Mr. Nernberg ultimately sold both the Mockingbird Trail Residence and the Jamaica Lane Residence. Both sales resulted in a net loss, although the evidence failed to prove the extent of the loss Mr. Nernberg suffered. The events surrounding the Mockingbird Trail Residence were investigated by the Department as Case 2001-03283. The events surrounding the Jamaica Lane Residence were investigated by the Department as Case 2001-03284. Mr. Battaglia was previously disciplined by the Board for alleged violations of Chapter 489, Florida Statutes.5
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Board: Finding that Mr. Battaglia violated Section 489.129(1)(g), (i), and (m), Florida Statutes, as alleged in Counts I, II, and III of Case Nos. 2001-03283 and 2001-03284; Imposing a fine of $2,000.00 for the violation of Section 489.129(1)(g), Florida Statutes, and a fine of $1,000.00 for the violation of Section 489.129(1)(i), Florida Statutes, in Case No. 2001-03283; Imposing a fine of $2,000.00 for the violation of Section 489.129(1)(g), Florida Statutes; and $1,000.00 for the violation of Section 489.129(1)(i), Florida Statutes, in Case No. 2001-3284; and Suspending Mr. Battaglia's general contractor certificate for a period of two years from the date of the final order for his violation of Section 489.129(1)(g), Florida Statutes, in both cases. DONE AND ENTERED this 11th day of August, 2003, in Tallahassee, Leon County, Florida. S LARRY J. SARTIN 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 11th day of August, 2003.
The Issue Should Petitioner impose discipline on Respondent's correctional certificate for alleged violations set forth in the Administrative Complaint, Case No. 17450?
Findings Of Fact Based upon the election of rights and proof identifying Respondent's employment with the Florida Department of Corrections, it is inferred that Respondent is certified as a corrections officer by Petitioner. It is perceived that Respondent, in his contest of material facts, disagrees with the allegations in paragraph two to the Administrative Complaint, as those facts might reveal a violation of statutes and rules referred to in the Administrative Complaint in its latter provisions. Respondent rented an acoustic guitar and an item referred to as a "gig-bag" from Guitar Renters in its Gainesville, Florida store. The amount of rental was $30.74 for the period November 16, 1999, through December 11, 1999. The overdue rate for the rental was $2.97 per day. The retail value of the instrument and bag was identified in the rental agreement as $345.00. The rental contract was executed by Respondent agreeing to those terms. The contract made clear that the arrangement was for rental only and not for sale. There was a specific reminder that any rental over 10 days past due would be reported to the police department as a stolen item. Respondent did not timely return the guitar and bag consistent with the contract terms. As a consequence, the proprietors at Guitar Renters sent letters in the ordinary mail to remind Respondent that he was late in returning the items. No response was made to those letters. A certified letter was sent to Respondent reminding him of his obligation to return the equipment. Again Respondent failed to respond. Scott Tennyson, who managed the Gainesville store, telephoned Respondent about the overdue items. Respondent replied that he could not return the instrument. When asked why, Respondent indicated that he had pawned the instrument. Mr. Tennyson told Respondent that if the matter were not resolved in some fashion, namely for Respondent to go back and get the guitar from the pawnshop and bring it to the owner, then criminal charges would be filed. Consistent with that statement, a complaint was made and criminal charges were filed in the Circuit Court in and for Alachua County, Florida, Court No. 01-2000-01573-CFA, C.R. No. 007601, Division One. This case was pursuant to a sworn complaint from the Gainesville Police Department charging Respondent with grand theft. The case was subsequently nolle prosequi/no information, based upon what is referred to in that dismissal, as an appropriate administrative action deemed sufficient in lieu of prosecution. On June 25, 2001, the matter was resolved to the satisfaction of Guitar Renters when Respondent made payment in full on the items that he had rented. In effect, the items were sold by way of restitution at their stated value when the rental contract was made.
Recommendation Upon consideration of the facts found and Conclusions of Law reached, it is RECOMMENDED: That a Final Order be entered revoking Respondent's correctional certificate. DONE AND ENTERED this 20th day of August 2003, in Tallahassee, Leon County, Florida. S CHARLES C. ADAMS 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 20th day of August, 2003. COPIES FURNISHED: Kevin Dannunzio 1718 Spring Street Lake City, Florida 32025 Linton B. Eason, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Rod Caswell, Program Director Criminal Justice Standards and Training Commission Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
Findings Of Fact Dirt Road Sportsmen Club, Inc. is a non-profit corporation incorporated under the laws of Florida. Dirt Road Sportsmen Club filed an application for a beverage license pursuant to the provisions of Section 561.20(7)(a)3 as a non-profit corporation devoted to promoting community, municipal, or county development or any phase of community development, municipal or county development. Newspaper clippings, a letter, and the testimony of a city commissioner of Lake Wales, Florida, established that Dirt Road Sportsmen Club is a non- profit corporation of adult, black, males which was organized and incorporated several years prior to the date of its application. Its activities have centered on promoting voter awareness and participation in elections within the black community; beautification and improvement of the black community; social functions within the black community; and financial assistance to the victims of fire and other accidents; and financial assistance to individuals, groups, and athletic teams participating in various events. The sanitation requirements of its facility were initially approved by the appropriate authorities; however, because of the delay on its application during which its facility could not be used and because of opposition to the location of its facility, the facility was vandalized and the interior of the facility virtually destroyed. The testimony of the health inspector who conducted the secondary inspection revealed that the interior of the facility had been completely redone prior to the institution of the application request, but that the floors, walls, doors, and windows had been destroyed within the facility. Evidence was introduced that a records check conducted by an agent of the Division revealed that some of the applicant's officers had been arrested for the unlicensed selling of alcoholic beverages, but that the charges, which were over two years old at the time of the hearing had never been resolved or prosecuted. This was the extent of the information available reflecting adversely on the character of the applicant's officers. The organization's president was recognized by the Lake Wales commissioner who testified in the proceeding as being known in the community as a reputable individual possessed of good character.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer would recommend that the license be denied until the premises is determined to meet the sanitary requirements of the statutes. DONE and ORDERED this 28th day of November, 1978, in Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Leroy Smith, President Dirt Road Sportsmen Club 423 North 8th Street Haines City, Florida 33844 Mary Jo Gallay Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32304 Charles A. Nuzum, Director Division of Alcoholic Beverages and Tobacco 725 South Bronough Street Tallahassee, Florida 32304
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 Whether Respondent committed violations of Subsection 616.242(19)(a), Florida Statutes (2006),1/ as alleged in the Administrative Complaint dated August 23, 2007, and, if so, what penalties, if any, should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing in this matter, the following Findings of Facts are made: Petitioner is the state agency responsible for inspecting and regulating amusement rides pursuant to Section 616.242, Florida Statutes. Respondent, a Florida corporation, owns and operates the amusement rides which are the subject of this administrative action, specifically, two go-cart tracks known as the "Commander Track" (USAID #05211) and the "Quad Helix Track" (USAID #05212). During an unannounced inspection on May 31, 2007, Petitioner's inspector observed that there was one attendant assigned to the Commander track and there were two attendants assigned to the Quad Helix track. These tracks are interconnected in that they are laid out so that the tracks are intertwined, but one cannot drive from one track to the other. The Commander track is 590 feet long with a maximum speed of 11.61 mph. The Quad Helix track is 1575 feet long with a maximum speed of 15.13 mph. At the time of the inspection, Petitioner's inspector felt that the monitoring procedures in place did not satisfy the statutory requirement that the ride not be operated "in a manner or circumstance that presents a risk of serious injury to patrons." There are a total of four tracks in Respondent's park; all are to some degree intertwined or positioned close together. On May 31, 2007, there were six specified track attendants on duty that were positioned through the park and each attendant is instructed to visually monitor the interconnected tracks. May 31, 2007, was a Thursday. The inspection occurred prior to noon which was not a busy time at the park. At the time of the inspection, there were eight attendants operating other amusement rides in areas contiguous to the Commander and Quad Helix tracks. All attendants in the park are equipped with two-way radio communications and are in constant radio communication with each other as part of the standard monitoring procedures. Respondent's has implemented a procedure called the "10-20" rule for monitoring its premises. Literally, this means that every ten seconds each attendant is to visually scan his surrounding area and each attendant must be able to respond to any area of the track within 20 seconds. Determining whether each attendant actually performs this safety ritual every ten seconds is problematic; the procedure does, however, serve to remind each employee that a safety vigil must be constantly maintained. Respondent had electronic video monitoring throughout the amusement park, and although no employee is specifically designated to constantly monitor the video screens, the screens are located in an office that is regularly occupied. There were a sufficient number of Respondent's employees "on duty" and in position to monitor the Commander and Quad Helix tracks at the time and date of the alleged violations to ensure that these amusement rides were operated in a manner or circumstance that did not present a risk of serious injury to patrons.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that Petitioner, Department of Agriculture and Consumer Services, enter a final Order dismissing the Administrative Complaint directed to Respondent, Fun Spot of Florida, Inc., dated August 23, 2007. DONE AND ENTERED this 29th day of February, 2008, in Tallahassee, Leon County, Florida. S JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of February, 2008.
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.
