The Issue Whether Respondent was ejected and permanently excluded from a facility as stated in the Administrative Complaint, and, if so, what sanction should be imposed.
Findings Of Fact Petitioner is the state agency charged with regulating pari-mutuel wagering, slot machines, and cardroom operations pursuant to chapters 550, 551, and section 849.086, Florida Statutes. At all times material to this case, Respondent was a patron of Isle Casino. At all times material to this case, Isle Casino was a facility operated by a permit holder authorized to conduct pari- mutuel wagering and to operate slot machines and a cardroom in the State of Florida. Respondent offered no tangible evidence suggesting that he was not excluded from Isle Casino. Respondent's date of birth is February 3, 1983. John Joseph Keenan is the director of compliance and safety for Isle Casino. He has been with Isle Casino for more than ten years. He began as a compliance officer, became compliance manager in 2012, and then director of compliance and safety in 2014. On March 9, 2019, several people at a poker table noticed "something was going on" with Mr. Rios and reported it to the poker supervisor. At this time, poker management and security reviewed surveillance video to determine if the allegations were true. The allegations against Mr. Rios were that he was doing something suspicious with the cards used at the table. During inspection of the deck that was used, Isle Casino noticed markings on the cards. Review of the surveillance video showed Mr. Rios shielding the cards with his hands and performing an action with his thumb. A close inspection of the cards in play at the single deck poker game shows that slits were made for the high cards in the deck, i.e., aces, kings, queens, jacks and tens. The marks were made with Mr. Rios's thumbnail. He etched a line in high cards in the poker deck and spaced the lines so the progression from ace to ten was visible by the placing of the slits downward along the edge of the cards so marked. This was done so he was able to determine who had the high cards at the poker table to get an advantage in the game. The markings, which were made on the cards, gave Mr. Rios a competitive advantage because he would know who had the high cards at the table. He could essentially see in the hands of the other card players whether his likelihood of winning the hand was increased. Mr. Rios sat directly to the left of the poker dealer, in what is known as "Seat 1." He would be able to see all the cards going out to the players, and was the first player to receive his cards. Mr. Keenan testified that Jason Cluck was the director of surveillance at the time of the complaint against Mr. Rios. In an email on March 11, 2019, Mr. Cluck sent Isle Casino's investigative report to Petitioner's investigator, William Smith. Mr. Keenan testified that he was copied on the email. Mr. Keenan also testified that photographs were attached to the email from Mr. Cluck to Mr. Smith on March 11, 2019. The ten photographs, admitted into evidence in this matter as Exhibit 3, show as follows: Photograph 1 shows a full deck of cards; Photograph 2 shows where the cards were marked, with arrows pointed down at the cards; Photograph 3 shows a marking on the ace of diamonds; Photograph 4 shows cards in the upright position where markings were made at the top right corner; Photograph 5 shows another single card with markings on the side; Photograph 6 shows high cards, a king and a queen, with markings; Photograph 7 shows a marking on the bottom left corner of a card; Photograph 8 shows marking on two cards, on the top left corner; and Photographs 9 and 10 are surveillance stills showing Mr. Rios at the poker table. Mr. Keenan testified that the photographs and video stills are true and correct representations of what occurred on March 9, 2019. Based on the incident reports, video, and photographs with the marks, Isle Casino concluded that Mr. Rios was attempting to manipulate the game. Accordingly, Isle Casino gave Mr. Rios an ejection from the casino. Mr. Keenan testified that Mr. Rios had a "Players Club" card with Isle Casino, which is how he was identified as the individual making markings on the cards. The "Players Club" card is swiped whenever an individual plays at a table and, in this instance, has information that identified Mr. Rios by name. On March 12, 2019, Mr. Rios was permanently excluded from Isle Casino. Mr. Keenan testified that he is familiar with the Notice of Exclusion issued to Mr. Rios in this matter. An individual who has been issued a permanent exclusion from Isle Casino is not permitted future entry into the facility. If caught in the facility, he could be deemed a trespasser. Once a player has been excluded, the individual's "Players Club" account would be inactivated and would provide Isle Casino with an alert if the individual attempted to use the account. Mr. Rios left the casino before the exclusion form could be presented to him. The subject of the exclusion does not have to be present when the exclusion is handed down. On cross-examination by Respondent, Mr. Keenan testified that the cards had been inspected and contained no impermissible markings prior to Mr. Rios playing. Mr. Rios sat down, made gestures with his hands, and made indents on the cards. Players at the table notified Isle Casino personnel to investigate, and they determined that Mr. Rios made the indentations on the card, which resulted in the conclusion to eject him and permanently exclude him from the casino. Mr. Smith testified that he has worked at the Division for seven years as an investigator. He was the author of the document that was entered into evidence as the "Office of Investigation, Investigative Report," dated March 12, 2019. The report concluded that Mr. Rios has been excluded from Isle Casino, which made him a candidate for exclusion from all pari-mutuel facilities in the State of Florida. When Mr. Smith was made aware of Mr. Rios's actions, he immediately went to the Isle Casino to investigate. He personally inspected the indented cards and viewed the video surveillance of the incident. When viewing the DVD of Mr. Rios's actions, Mr. Smith observed Mr. Rios marking the upper left part of the cards, turning the cards around in order to also mark the bottom right part of the cards. Mr. Smith testified that the marks he personally saw on the card matched the actions that he saw Mr. Rios commit on the video. Based upon his personal observation of the video surveillance, his review of the still photographs from the video surveillance, the observations described to him by additional personnel at Isle Casino, and his personal inspection of the marked playing cards, Mr. Smith agreed that Respondent engaged in cheating, which led to his being banned from Isle Casino. He expressed the Division's interest in ensuring that individuals banned from one pari-mutuel facility for cheating not be permitted to take his or her craft to other pari-mutuel facilities in Florida. His conclusion that Mr. Rios should be banned from all Florida pari-mutuel facilities was based on his validation of the action taken by Isle Casino following their investigation of the allegations brought to their attention by Respondent's fellow players. Mr. Rios first testified that he thought he was playing cards at the Hard Rock Casino on the date of the incident at Isle Casino. When confronted with the photographs of him standing before the Isle Casino cashier, however, he admitted to playing cards there on the date in question. He said the photos of the cards in a player's hand showing the indentations along the upper left and lower right corners were not of his making, although the surveillance video proves otherwise. Mr. Rios denied cheating in any way and testified he did not see any cards that had been marked as described by Mr. Keenan and Mr. Smith. He stated that he believed the cards had not been inspected prior to the game and that any marks on the cards were probably there when the cards were put into play at his game. He brought no witnesses or evidence to support his contention. Mr. Rios testified that he was not familiar with the procedure involved in excluding patrons from a pari-mutuel facility.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Division of Pari-Mutuel Wagering issue a final order permanently excluding Dachiell Rios from all pari-mutuel facilities in the State of Florida. DONE AND ENTERED this 18th day of September, 2019, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of September, 2019. COPIES FURNISHED: Jason Walter Holman, Esquire Division of Pari-Mutuel Wagering Department of Business and Professional Regulation 2601 Blair Stone Road Tallahassee, Florida 32399 (eServed) Dachiell Rios 250 Northwest 55th Court Miami, Florida 33126 Halsey Beshears, Secretary Department of Business and Professional Regulation 2601 Blair Stone Road Tallahassee, Florida 32399-2202 (eServed) Ray Treadwell, General Counsel Office of the General Counsel Department of Business and Professional Regulation 2601 Blair Stone Road Tallahassee, Florida 32399-2202 (eServed) Louis Trombetta, Director Division of Pari-Mutuel Wagering Department of Business and Professional Regulation 2601 Blair Stone Road Tallahassee, Florida 32399-2202 (eServed)
Findings Of Fact Petitioner designs, manufactures, and sells the "Little Casino" video game machine. The machine is designed to enable a player, through the insertion of either one or two quarters, to play one of four games: poker, high-low, blackjack, or craps. The machine contains two switches which enable the owner to control the cost per game, whether 25 cents or 50 cents per game. Upon deposit of the appropriate amount of money, the player of the game receives 10,000 points to play the selected game. If the operator utilizes the entire 10,000 points in less than four hands or rolls, the game is over. If, however, the operator earns or wins 100,000 points by the conclusion of the fourth hand or roll, a free fifth hand or roll is allowed. If the operator earns 200,000 points by the conclusion of the fifth hand or roll, a free sixth hand or roll is allowed. The player of the game is allowed no more than six hands or rolls in the chosen game, regardless of the number of points scored. Depending upon the game option selected, cards or dice appear on the video screen. So far as can be determined from the record in this cause, the dealing of the cards or roll of the dice is entirely determined by the programming of the machine, and the player is wholly unable to control or influence the initial selection of cards or the roll of the dice. Little Casino does not allow free replays, does not accumulate free replays, and makes no permanent record of free replays. The game is not classified by the United States as requiring a federal gambling tax stamp under any applicable provisions of the Internal Revenue Code. The machine can be set to eliminate what Respondent considers to be the objectionable fifth and sixth hands.
The Issue Whether or not on or about the 10th day of June through the 14th day of June, 1976, on the Respondent's licensed premises located at 10 West Church Street, Jacksonville, Florida, the Respondent, its agent, servant or employee, did unlawfully employ a person, one Karen Lynn Madden, date of birth June 17, 1959, who is under the age of eighteen years, thereby violating s. 562.13, F.S.
Findings Of Fact At all times material to the allegations found in the amended Notice to Show Cause the Respondent, G and B of Jacksonville, Inc., trading as The Harem, located at 10 West Church Street, Jacksonville, Florida, was licensed under License No. 26-957, Series 2-COP, held with the State of Florida, Division of Beverage. Karen Lynn Madden was born on June 17, 1959. Rudy G. Davis, the general manager with the Respondent corporation, hired Karen Lynn Madden without examining any form of identification from Madden, based on his belief that she appeared to be over the age of eighteen and based upon a statement by a friend of Madden's, one Lily Lucille Coleman. Coleman told Davis that she was "just about definite" in her belief that Madden was over nineteen years of age. The hiring took place either on June 10, 1976 or June 11, 1976. Madden went to work on that date and served in the capacity as a bartender selling alcoholic beverages. In addition to one or both of those dates, she worked June 12, 1976 and June 14, 1976. On the night of June 11, 1976, Officer Hodges of the Jacksonville Sheriff's Office entered the licensed premises in which Madden had been employed. Officer Hodges was there on a routine patrol. He approached the bar where Madden was serving alcoholic beverages and asked Madden for some form of identification and was shown a blank style identification card which gave a name and address and an incorrect date of birth which showed Madden to be over the age of eighteen. Officer Hodges, at that time, confronted Davis with the discovery and Davis indicated that he didn't know whether Madden had some other identification or not. Hodges stated that he did not feel the identification was sufficient to work in the bar. Davis instructed Madden to bring some better form of identification in order to be employed as a bartender. On Monday, June 14, 1976, Madden came back to work at the bar and worked there until around 10:00 p.m. when Davis arrived, checked the identification which Madden then produced for him and Davis determined that the identification was not sufficient and fired Madden from her job.
Recommendation It is recommended that the license of the Respondent, G and B of Jacksonville, Inc., trading as the Harem, license no. 76-957 be suspended for a period of 30 days to run concurrently with the suspension in the case before the Division of Administrative Hearings no. 76-1989. DONE AND ORDERED this 18th day of April, 1977, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Charles Tunnicliff, Esquire Division of Beverage 725 Bronough Street Tallahassee, Florida 32304 Harry Katz, Jr., Esquire 337 East Forsyth Street Jacksonville, Florida 32202
The Issue abetting bookmaking on its licensed premises. If so, what disciplinary action
Recommendation Based on the foregoing, it is RECOMMENDED: That the charges against Rickey's Restaurant and Bar, Inc., be DISMISSED. DONE AND RECOMMENDED this 5th day of February, 1982, in Tallahassee, Florida. R. L. Caleen, Jr. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675
The Issue The issue in this case is whether Respondent should approve the renewal of a licensee's annual slot machine gaming license, where, according to Petitioner, the licensee's slot machine gaming area is not "contiguous and connected to" its pari-mutuel facility's "live gaming facility" for wagering on horse races—— if a live gaming facility even exists at the track——and therefore fails to conform to statutory requirements.
Findings Of Fact Parties Petitioner Florida Horsemen's Benevolent and Protective Association, Inc. ("FHBPA"), is a Florida nonprofit corporation whose members include hundreds of Florida licensed horse trainers and thousands of Florida licensed horse owners. FHBPA exists to promote horse racing in the state of Florida and to represent the interests of its members in dealing with the public, the legislature, state regulators, and the tracks. Respondent Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering ("DPMW"), is the state agency responsible for implementing and enforcing Florida's pari-mutuel laws. Its duties include the licensing and regulation of all pari-mutuel activities in Florida. Respondent Calder Race Course, Inc. ("Calder"), is the holder of a pari-mutuel wagering permit. 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.1/ At all times relevant to this case, Calder has held a license to conduct thoroughbred horseracing performances. 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. Events Leading to the Instant Dispute In July 2009, Calder applied for and received a slot machine license, in accordance with the provisions of section 23, article X of the Florida Constitution, and sections 551.101 and 551.102(4). As a condition of initial licensure, Calder needed to demonstrate its compliance with chapters 551 and, as applicable, chapter 550, Florida Statutes. § 551.104(4), Fla. Stat. A slot machine license must be renewed annually. "[T]o maintain continued authority for the conduct of slot machine gaming," a slot machine licensee must, as a condition of renewal, and at all times, "[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. 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), which is at the center of the current controversy, 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. From the outset, Calder intended not to place its SMGA within the current live gaming facility ("LGF") at its track, but in a new casino, to be constructed for the purpose of serving as its slot machine building ("SMB"). Opened in 2010, Calder's casino was nearby its racetrack and grandstand facility. The grandstand, with a large seating area for spectators, was part of a 450,000 square foot building. When the casino first opened its doors, this grandstand building was Calder's LGF. Calder's SMB (the casino), when built, was not "contiguous" to the current LGF (the grandstand) under any ordinary understanding of the word "contiguous," which clearly denotes actual contact——touching. Nor was the SMB directly "connected to" the LGF in accord with the image that most readily comes to mind when thinking about how two contiguous structures would be connected to each other, for in that image some physical element of one structure is linked or joined to some physical element of the other, which latter shares a common boundary with the former, being contiguous thereto. This departure from the plain meaning section 551.114(4) resulted from DPMW's decision to give licensees "leeway" in satisfying the strict statutory requirement that an SMB, if used as the location for the SMGA, be "contiguous and connected to" the current LGF (the "CCT Requirement"). DPMW first relaxed the CCT Requirement for Pompano Park, a standardbred harness racetrack in Pompano Beach, Florida. A few years before Calder obtained its slot machine license, Pompano Park had acquired one. Pompano Park had wanted to place its SMGA in a new SMB, just as Calder later would do, and sought DPMW's guidance regarding compliance with the CCT Requirement. DPMW informed Pompano Park that the agency would be satisfied if the two buildings were "connected" by a covered walkway (rather than to each other). So, Pompano Park "connected" its newly constructed SMB to its then current LGF (a grandstand) by a sidewalk, and DPMW approved the configuration by issuing, and renewing, Pompano Park's slot machine license. In 2009, Calder wanted the same deal for its SMB. DPMW had no real choice but to go along. Having previously construed the CCT Requirement as demanding no more than a connecting sidewalk between the SMB and the LGF, DPMW had formulated an interpretive statement regarding section 551.114(4) for Pompano Park so broadly worded as to apply generally to all slot machine licensees. It therefore could have surprised no one when DPMW told Calder that its proposed SMB would be sufficiently "contiguous and connected to" the existing grandstand if there were a covered walkway between the structures. Calder made it so. At the time Calder built its casino, FHBPA did not object to DPMW's slots-friendly construction of section 551.114(4), which gave the green light to stand-alone SMBs——and, for that reason, should have flashed a yellow warning signal to the horsemen. Calder's original set-up, however, promised to benefit FHBPA because section 551.104(10)(a) provides that "[n]o slot machine license or renewal thereof shall be issued to an applicant holding a permit under chapter 550 to conduct pari- mutuel wagering meets of thoroughbred racing unless the applicant has on file with [DPMW] a binding written agreement between the applicant and the Florida Horsemen's Benevolent and Protective Association, Inc., governing the payment of purses on live thoroughbred races conducted at the licensee's pari-mutuel facility." Calder, in short, was required to enter into a revenue sharing agreement with FHBPA under which slot machine revenues would be used to supplement the purses paid on the races conducted at Calder's track. As of the final hearing, pursuant to the FHBPA/Calder Supplement Agreement ("Statutory Contract"),2/ FHBPA was collecting (for the benefit of its members) between $8 million and $9 million per year from Calder's slot machine gaming operations. The interesting thing about section 551.104(10) is that not only does it require Calder, as a slot machine licensee, to have a binding written agreement with FHBPA, as the statutorily designated (by name) thoroughbred horsemen's bargaining agent; but also, FHBPA is forced thereunder to enter into the agreement with Calder. In this regard, section 551.104(10)(c) provides that if the parties are unable timely to reach an agreement, they must submit to "mandatory binding arbitration to resolve the[ir] disagreement," at the conclusion of which "the arbitration panel shall present to the parties a proposed agreement that the majority of the panel believes equitably balances the rights, interests, obligations, and reasonable expectations of the parties." § 551.104(10)(c)3., Fla. Stat. The parties "shall [then] immediately enter into such agreement, which shall satisfy the requirements of [section 551.104(10)](a) and permit issuance of the pending annual slot machine license or renewal." Id. The statute literally gives FHBPA no choice but to do business with Calder as long as Calder is a slot machine licensee. If FHBPA had any misgivings about DPMW's interpretation of the CCT Requirement in and around 2010 and during the several years thereafter, the slot machine revenue stream flowing to FHBPA pursuant to the Statutory Contract must have ameliorated them. By allowing Pompano Park and Calder to build freestanding, noncontiguous SMBs, however, DPMW (perhaps unwittingly) had opened a door that Calder strode through in 2015, when it began tearing down the grandstand complex, a demolition project which was completed in 2016.3/ Calder could do this without in any way affecting the casino/SMB because the SMB was not actually contiguous and connected to the LGF. Had the SMB truly been contiguous and connected to the LGF, Calder could not have demolished the LGF without directly impacting, if not partially tearing down, the SMB. In that event, new construction would have been needed to restore the SMB's integrity and to replace the LGF to which the SMB must be contiguous and connected.4/ As it happened, Calder razed the grandstand, cleared the debris, and built——nothing. The question naturally arises, therefore, whether Calder currently has a "live gaming facility." FHBPA asserts that Calder lacks a legally sufficient LGF because there is no longer an occupiable structure near the track from within which patrons may watch and place wagers on live horse races. DPMW and Calder disagree with FHBPA. They contend that Calder has a "live viewing area" or "live viewing locations," which include some physical amenities that, taken as a whole, constitute an LGF within the ambit of section 551.114(4). There are no genuine disputes regarding the material facts surrounding Calder's so-called "live viewing locations." 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 there, 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. At the "viewing locations" on and around the apron, patrons can watch and place bets on horse races. Conveniently, walk-around tellers are usually nearby to take wagers from patrons who venture out from the shaded area under the canopy. A food truck is frequently present, too, so patrons might have a trackside dining option. All of this is only a short distance from the casino, and there is a concrete walkway along the route, so patrons do not need to step on grass or parking lot pavement if they stroll from the SMB to the apron or vice versa. And, although there is no longer a ceiling or other covering protecting the entire length of the sidewalk from the elements, patrons at least do not need to cross a public street, waterway, or similar barrier to get from the SMB to the "live viewing area" on the apron, nor must they leave the confines of Calder's property. In July 2017, DPMW granted Calder's application for the renewal of its slot machine license, for the fiscal year 2017-18. DPMW took this action knowing that Calder had demolished its grandstand and being fully aware of the facts relating to Calder's trackside "live viewing area." Behind DPMW's issuance of the renewal license lay its interpretation of section 551.114(4)'s "live gaming facility" nomenclature as including an outdoor "viewing area" such as the apron at Calder's track; and the agency's interpretation of the statute's CCT Requirement, under which the strict original text, "must be contiguous and connected to," becomes the lax, "must be no farther than a short walk from, and connected by a paved pathway that crosses no streets, rivers, or similar barriers, to." On October 25, 2017, FHBPA filed a Petition Challenging an Agency Statement as a Rule, alleging that DPMW's interpretations of "live gaming facility" and "contiguous and connected to," as manifested by the renewal of Calder's slot machine license, constituted unadopted rules. See Fla. Horsemen's Benevolent & Protective Ass'n v. Dep't of Bus. & Prof'l Reg., Case No. 17-5872RU, 2018 Fla. Div. Adm. Hear. LEXIS 654 (Fla. DOAH Sept. 4, 2018)(the Rule Challenge). FHBPA lost its section 120.56(4), Florida Statutes, challenge to these agency statements at the trial level and did not appeal the ALJ's decision. DPMW and Calder view their last victory as significant, but the Rule Challenge has no bearing on this case. Whether or not DPMW's interpretations of section 551.114(4) are rules by definition, they are not controlling here. If they are unadopted rules, then the undersigned, of course, cannot apply them as authoritative principles in determining any party's substantial interests. See § 120.57(1)(e), Fla. Stat.5/ And if they are not unadopted rules, as was found in the Rule Challenge, then by definition the interpretive statements do not have the force and effect of law. Simply put, DPMW cannot have nonliability under section 120.56(4) and authoritative statements, too. At bottom, therefore, DPMW's interpretative statements constitute legal arguments to be evaluated on the same footing as any other party's arguments. In this regard, it is perhaps worth noting that section 120.56(4) neither requires nor authorizes the ALJ to determine whether the alleged unadopted rule is a correct reading of the underlying statute. Accordingly, the ALJ in the Rule Challenge rightly declined to reach that issue. Id. at *37. In this case, by contrast, ascertaining the originally intended meaning of section 551.114(4), so that the legislature's policy respecting SMBs may be carried out, is the whole ballgame.6/ In May 2018, Calder filed an application to renew its slot machine license for 2018-19. On July 9, 2018, DPMW granted Calder's application and issued the renewal license, taking putative final agency action. Not long thereafter, FHBPA filed a petition requesting a hearing to contest DPMW's issuance of a renewal license to Calder for fiscal year 2018-19. Regarding the timeliness of FHBPA's petition, it is undisputed that DPMW did not give FHBPA a clear point of entry into an administrative proceeding to determine the correct agency action to take on Calder's license renewal application. Consequently, as will be discussed below, the issuance of Calder's renewal license, despite outward appearances, is not final agency action, as a matter of law, if the decision to approve Calder's application determines FHBPA's substantial interests. In other words, because an opportunity for a hearing was not clearly offered to, and thereafter waived via inaction by, FHBPA, its petition was not untimely, provided FHBPA has standing to proceed (which is disputed). The Real Agency Action of Interest Because Calder must remain continually in compliance with chapter 551 to maintain its license to conduct slot machine gaming, DPMW could not and cannot lawfully renew Calder's license without first determining that Calder remains in compliance with all provisions of the slot machine gaming law. Thus, by necessary implication, DPMW's approval of Calder's application for renewal of licensure reflects and manifests the agency's conclusion that Calder continues to conform to, inter alia, the CCT Requirement. There is no dispute about this. There is also no dispute that Calder's original LGF, the grandstand, had been demolished by the time of the instant renewal application, and that in its place, at the trackside apron, near the spot where the grandstand had once stood, Calder had established a "live viewing area" as described above, whose only "connection to" the SMB was (and remains) a paved walkway. The real agency action of interest to FHBPA is not the renewal of Calder's license per se——although that's important, to be sure, because the license preserves a real-life status quo of facts on the ground that FHBPA considers harmful to its interests; rather, the real determination at issue is DPMW's loose reading of section 551.114(4), without which the approval of Calder's application could not have happened. FHBPA contends that DPMW has not only misapplied section 551.114(4) (in renewing Calder's license) but also misinterpreted the statute (in forming a generally applicable understanding of the CCT Requirement that waters down the plain statutory language). The issuance of the license was an overt, formal agency action. The statutory interpretation was covert and informal but no less an agency action. When DPMW told Calder in 2009 (and Pompano Park some time earlier) that the CCT Requirement could be satisfied by installing a covered walkway between the SMB and the LGF, it effectively rendered a declaratory statement, albeit without following the procedure set forth in section 120.565. Later, when DPMW indicated to Calder that its current LGF did not need to be a building, because an outdoor, trackside "viewing area" with a canopy tent located near the place where the former LGF had once stood would be good enough for section 551.114(4), the agency again provided Calder with the functional equivalent of a declaratory statement, absent the formalities. FHBPA was never given a clear point of entry to be heard in these matters. Attention is being drawn to the agency's articulation, sub silentio, of these declaratory statements-in-fact because DPMW and Calder would like to characterize the action at issue here as being strictly a two-party transaction involving "just" the agency's renewal of Calder's slot machine license. But, that is not true. The renewal of Calder's license necessarily means, to repeat for emphasis, that DPMW has determined that Calder's SMB is "contiguous and connected to" its "LGF" (or "live viewing area," as they understandably prefer to call it), because Calder is required to be in compliance with section 551.114(4) to maintain its continued authority to conduct slot machine gaming operations. These are very real, very consequential interpretive statements. If FHBPA's substantial interests may be affected by these agency decisions regarding the meaning of section 551.114(4), as FHBPA asserts, then its right to a hearing under sections 120.57 and 120.569 concerning DPMW's statutory interpretations has not been waived, because DPMW failed to publish advance notice thereof in accordance with section 120.565(3).7/ In sum, while this case appears on the surface to be a challenge to the agency action that was taken in plain view, i.e., the renewal of Calder's slot machine license, what is really happening is a determination of the correct understanding of section 551.114(4), which is a consequence of DPMW's having provided Calder, behind the scenes, with putatively authoritative interpretations of key statutory terms. Assuming DPMW's interpretive statements affect or determine FHBPA's substantial interests, FHBPA's right to a hearing thereon is not legally tied to Calder's license renewal and, indeed, could have been exercised independent thereof. Once the statutory meaning is finally sorted out, the question——which is secondary to a correct understanding of section 551.114(4)——of whether Calder may continue lawfully to conduct slot machine gaming operations without making changes to its existing pari-mutuel facilities will be easily answered because the material facts about the licensee's current facilities are not genuinely disputed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering, enter a final order denying Calder's application for renewal of its slot machine license for the fiscal year 2018-19. DONE AND ENTERED this 24th day of May, 2019, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM 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 24th day of May, 2019.
