The Issue The issue is whether the word, "internal," in Florida Administrative Code Rule 61D-14.041(1) is an invalid exercise of delegated legislative authority because Respondent exceeded its grant of rulemaking authority or because this word enlarges, modifies, or contravenes the law implemented, in violation of sections 120.56(3) and 120.52(8)(b) and (c). In sum, Petitioner and Intervenor challenge rule 61D-14.041(1) only to the extent that this rule requires that each slot machine contain an internal random number generator.
The Issue Whether the Respondent's Proposed Rule 61D-11.012(5)(d) constitutes an invalid exercise of delegated legislative authority pursuant to Section 120.52(8)(c) and (e), Florida Statutes, as set forth in the Petition Challenging the Validity of Proposed Rule 61D-11.012(5)(d) filed March 14, 2008.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the Agreed Facts included in the parties' Pre- Hearing Stipulation, and on the entire record of this proceeding, the following findings of fact are made: The Parties The Division is authorized to administer cardrooms; to regulate the operation of cardrooms; and to adopt rules governing the operation of cardrooms. See § 849.086(4), Fla. Stat. (2007).1 Hartman and Tyner owns a pari-mutuel facility doing business as Mardi Gras Racetrack and Gaming Center, located at 831 North Federal Highway, Hallandale Beach, Florida 33009. Hartman and Tyner holds two pari-mutuel permits to conduct greyhound racing at this pari-mutuel facility, the BET Miami permit and the Mardi Gras permit. Pursuant to these permits, the Division issued Hartman and Tyner two current licenses to conduct pari-mutuel wagering at this pari-mutuel facility: License #141, which was issued under the BET Miami permit; and License #144, which was issued under the Mardi Gras permit. Pursuant to Section 849.086(5), Florida Statutes, Hartman and Tyner applied for, and the Division issued on June 28, 2007, two cardroom licenses allowing the operation of a cardroom with a maximum of 40 tables during the 2007/2008 season at its pari-mutuel facility. One cardroom license was issued in conjunction with the BET Miami permit, and the other cardroom license was issued in conjunction with the Mardi Gras permit. Hartman and Tyner computes the monthly gross receipts separately for the BET cardroom license and for the Mardi Gras cardroom license in calculating the 10 percent monthly tax imposed by Section 849.086(13)(a), Florida Statutes, and for purposes of the four percent monthly greyhound purse supplement imposed by Section 849.086(13)(b), Florida Statutes. Gulfstream Park holds two pari-mutuel permits to conduct thoroughbred and quarter horse racing at a pari-mutuel facility located in Broward County, Florida. Pursuant to Section 849.086(5), Florida Statutes, Gulfstream Park applied for, and the Division issued, a cardroom license in conjunction with its permit to conduct thoroughbred horse racing. Both Hartman and Tyner and Gulfstream Park are subject to regulation by Proposed Rule 61D-11.012(5)(d). The challenged proposed rule, relevant statutes, and legislative history. Section 849.086, Florida Statutes, which was first enacted in 1996, authorizes a person holding a pari-mutuel wagering permit to obtain a license to operate a cardroom at a pari-mutuel facility and sets forth the conditions under which such cardrooms are to operate.2 The legislative intent in enacting Section 849.086, Florida Statutes, is set forth as follows: LEGISLATIVE INTENT.--It is the intent of the Legislature to provide additional entertainment choices for the residents of and visitors to the state, promote tourism in the state, and provide additional state revenues through the authorization of the playing of certain games in the state at facilities known as cardrooms which are to be located at licensed pari-mutuel facilities. To ensure the public confidence in the integrity of authorized cardroom operations, this act is designed to strictly regulate the facilities, persons, and procedures related to cardroom operations. Furthermore, the Legislature finds that authorized games as herein defined are considered to be pari-mutuel style games and not casino gaming because the participants play against each other instead of against the house. Section 849.086(2), Florida Statutes, contains the following definitions which are pertinent to this proceeding: (c) "Cardroom" means a facility where authorized games are played for money or anything of value and to which the public is invited to participate in such games and charged a fee for participation by the operator of such facility. Authorized games and cardrooms do not constitute casino gaming operations. * * * (f) "Cardroom operator" means a licensed pari-mutuel permitholder which holds a valid permit and license issued by the division pursuant to chapter 550 and which also holds a valid cardroom license issued by the division pursuant to this section which authorizes such person to operate a cardroom and to conduct authorized games in such cardroom. Proposed Rule 61D-11.012 sets forth the duties of licensed cardroom operators at pari-mutuel facilities and is one of a number of proposed rules dealing with cardrooms at pari- mutuel facilities included in the Notice of Proposed Rule published by the Division on March 14, 2008, in Volume 34, Number 11, of the Florida Administrative Weekly. These rules were intended to implement changes to Section 849.086, Florida Statutes, enacted during the 2007 legislative session and effective July 1, 2007. Proposed Rule 61D-11.012(5), which contains the subsection that is the subject of this challenge, provides as follows:3 The cardroom operator must display the hours of operation in a conspicuous location in the cardroom subject to the following terms and conditions: Days and hours of cardroom operation shall be those set forth in the application or renewal of the cardroom operator. Changes to days and hours of cardroom operation shall be submitted to the division at least seven days prior to proposed implementation; Pursuant to Section 849.086(7)(b), F.S., a cardroom operator may operate a licensed facility any cumulative 12-hour period within the day; Activities such as the buying or cashing out of chips or tokens, seating customers, or completing tournament buy- insurance or cash-outs may be done one hour prior to or one hour after the cumulative 12-hour designated hours of operation; The playing of authorized games shall not occur for more than 12 hours within a day, regardless of the number of pari-mutuel permitholders operating at a pari-mutuel facility. Subsection(5)(d) was added to Proposed Rule 61D-11.012(5) at the end of February 2008, to "fix the Mardi Gras 24 hour cardroom issue."4 In the Notice of Proposed Rule for Proposed Rule 61D- 11.012, the Division identified its rulemaking authority as Section 550.0251(12) Florida Statutes, and Section 849.086(4) and (11), Florida Statutes. Sections 550.0251(12) and 849.086(4), Florida Statutes, both give the Division the authority to adopt rules governing, among other things, the operation of cardrooms at pari-mutuel facilities.5 These grants of rulemaking authority are sufficient to authorize the Division to promulgate Proposed Rule 61D-11.012. The Division stated in the Notice of Proposed Rule that Section 849.086, Florida Statutes, is the law implemented by Proposed Rule 61D-11.012. The only section of Proposed Rule 61D-11.012 challenged by Hartman and Tyner is Section (5)(d), which reflects the Division's interpretation of Section 849.086(7)(b), Florida Statutes. Section 849.086(7)(b), Florida Statutes, provides: "Any horserace, greyhound race, or jai alai permitholder licensed under this section may operate a cardroom at the pari- mutuel facility on any day for a cumulative amount of 12 hours if the permitholder meets the requirements under paragraph (5)(b)." Prior to the 2007 amendment, Section 849.086(7)(b), Florida Statutes (2006), provided in pertinent part: A cardroom may be operated at the facility only when the facility is authorized to accept wagers on pari-mutuel events during its authorized meet. A cardroom may operate between the hours of 12 noon and 12 midnight on any day a pari-mutuel event is conducted live as a part of its authorized meet. . . . Application to operate a cardroom under this paragraph must be made to the division as part of the annual license application. This version of the statute was enacted in 2003 and amended the original Section 849.086(7)(b), Florida Statutes (1997), which provided: A cardroom may be operated at the facility only when the facility is authorized to accept wagers on pari-mutuel events during its authorized meet. A cardroom may begin operations within 2 hours prior to the post time of the first pari-mutuel event conducted live at the pari-mutuel facility on which wagers are accepted and must cease operations within 2 hours after the conclusion of the last pari-mutuel event conducted live at the pari-mutuel facility on which wagers are accepted. Section 849.086(7)(b), Florida Statutes, requires that a pari-mutuel wagering permitholder must meet "the requirements under paragraph (5)(b)." Section 849.086(5), Florida Statutes, governs the issuance of cardroom licenses and provides that cardrooms may be operated only by persons holding valid cardroom licenses and that these licenses may be issued only to licensed pari-mutuel wagering permitholders. Section 849.086(5)(b), Florida Statutes,6 provides in pertinent part: After the initial cardroom license is granted, the application for the annual license renewal shall be made in conjunction with the applicant's annual application for its pari-mutuel license. If a permitholder has operated a cardroom during any of the 3 previous fiscal years and fails to include a renewal request for the operation of the cardroom in its annual application for license renewal, the permitholder may amend its annual application to include operation of the cardroom. In order for a cardroom license to be renewed the applicant must have requested, as part of its pari-mutuel annual license application, to conduct at least 90 percent of the total number of live performances conducted by such permitholder during either the state fiscal year in which its initial cardroom license was issued or the state fiscal year immediately prior thereto. If the application is for a harness permitholder cardroom, the applicant must have requested authorization to conduct a minimum of 140 live performances during the state fiscal year immediately prior thereto. If more than one permitholder is operating at a facility, each permitholder must have applied for a license to conduct a full schedule of live racing. Section 849.086(5)(b), Florida Statutes, was not changed by the 2007 amendments to Section 849.086, Florida Statutes, but, pertinent to this proceeding, the final sentence of the subsection was added by amendment in 2003. The effect of this amendment was described in the 2003 House of Representatives and Senate Staff Analyses as follows: "If more than one permitholder operates at a shared cardroom facility, each permitholder must apply for a license to conduct a full schedule of live racing." When introducing the bill that contained the 2007 amendment to Section 849.086(7)(b), Florida Statutes, to the Florida House of Representatives Jobs & Entrepreneurship Council, Representative Holloway, the sponsor of the House of Representatives bill, explained that the "cardroom bill . . . allows cardrooms to operate during live events, and the hours have changed from 12 hours a day . . . from a, from 12 Noon to 12 Midnight to 12 hours a day cumulative." In response to a question, Representative Holloway stated that the bill did not expand gambling in Florida, "[i]t is just re-arranging current provisions." In a similar vein, Senator Fasano, when he submitted a floor amendment to the Senate bill containing an amendment to Section 849.086(7)(b), Florida Statutes, stated that his amendment "limits the hours of operation of a cardroom to a cumulative amount equal to 12 hours in any day if the permit holder has met the requirements for licensure to operate a cardroom." Based on this legislative history and on the various iterations of the statute, the Division enacted Proposed Rule 61D-11.012(5)(d) to reflect its interpretation of the 2007 amendment to Section 849.086(7)(b), Florida Statutes, as limiting the operation of a cardroom at a pari-mutuel facility to a "cumulative amount of 12 hours." In the Division's view, the Legislature did not intend for the 2007 amendment to expand the number of hours a cardroom could operate but was intended only to allow a cardroom operator greater flexibility in setting the hours of operation. In promulgating Proposed Rule 61D- 11.012(5)(d), the Division made explicit its rejection of an interpretation of the 2007 amendment that would allow two pari- mutuel wagering permitholders licensed to operate a cardroom and sharing a pari-mutuel facility both to operate the cardroom at the pari-mutuel facility for a "cumulative amount of 12 hours" a day. The Division rejects such an interpretation because it could result in the operation of a cardroom at a pari-mutuel facility for 24 hours per day, exceeding what the Division considers the limitation on cardroom operation at a pari-mutuel facility to "a cumulative amount of 12 hours." § 849.086(7)(b), Fla. Stat.
The Issue Whether Respondent violated Sections 849.01, 849.15, and 849.09(1)(k), Florida Statutes, and if so what penalty should be imposed pursuant to Section 561.29, Florida Statutes.
Findings Of Fact Respondent, Christina Market Corporation, d/b/a Christina Sandwich Shop, is located at 4085 East Eighth Avenue, Hialeah, Florida. At all times relevant to this proceeding, Respondent held a Series II, COP license, number 23-2039. Gladys Rodriguez is the president and 100 percent stockholder of Respondent. A Series II, COP license is a license issued by the Division of Alcoholic Beverages and Tobacco to sell beer and wine for consumption on the premises. On March 10, 1992, Leonard H. Delmonte, an investigator for the Miami office of the Division of Alcoholic Beverages and Tobacco conducted an inspection of Respondent's premises. Mr. Delmonte observed five coin-operated poker machines and issued a Notice, warning that the poker machines were in violation of Rule 7A-3.004, Florida Administrative Code. On March 24, 1992, Respondent's premises were again inspected. The poker machines had been removed. Phillip Bidart, a sergeant with the organized crime section of the Hialeah Police Department, investigates violations of Chapter 849, Florida Statutes, as part of his duties with the police department. During the last two years he has investigated approximately 45 to 47 premises for gambling violations. Based on these investigations and professional training, Sergeant Bidart has developed expertise in the identification of devices commonly used in gambling and the investigations of violations of Chapter 849. In September, 1992, Sergeant Bidart observed video game machines at Respondent's premises. Later in September or October, 1992, he went in the establishment and saw a Bosconian video game machine which displayed an El Dorado Super Seven game on the screen and saw patrons playing the machine. In December, 1992, Sergeant Bidart sent two detectives to Respondent's establishment. They observed remote control type video game machines. One of the detectives played one of the machines and lost. In January, 1993, the Hialeah police raided an establishment near Respondent and found gambling machines. Shortly thereafter, the police visited Respondent's business and the video games machines previously observed in the fall of 1992 were gone. In late January or early February 1993, Sergeant Bidart observed people playing the video game machines at the Respondent's establishment. He believed that they were gambling because they were adults and were playing after nine o'clock at night. On February 6, 1993, Sergeant Bidart and other Hialeah police officers raided Respondent's business. There were no patrons in the establishment at the time of the raid. The police found and seized three video game machines: a Bosconian, a Mario Brothers, and a Chop-Lifter. Each machine had a coin slot and a paper currency slot which was located on the side of the machine and not in the same area as the coin slot. It is a common characteristic of gambling devices to contain such currency slots. A video gambling machine usually has a meter on the machine which shows the number of credits accumulated by a player. The owners can reset the machine by hitting a button which zeroes out the credit. The El Dorado Super Seven game found on Respondent's premises had such a reset button. During the raid the police also found a remote control on a shelf behind the counter. When one of the top three buttons was pushed, the Bosconian game screen turned into an El Dorado screen and the Mario Brothers screen turned into a Winner's Circle screen. The Chop-Lifter machine was not working; however Ms. Rodriguez advised Sergeant Bidart that the Chop-Lifter screen could be changed to a Cherry Bonus screen by the use of the remote control. A remote control is a device that is commonly used in gambling establishments to change the screens on video machines in order to mask game screens that are used for gambling. When an El Dorado Super Seven game is being played, three columns each containing three items will form three rows, each row containing three items. If three of the same items come up, vertically, horizontally, or diagonally, the player gets credits. El Dorado Super Seven games also have a high-low game which can be played as a bonus. Sergeant Bidart tested the El Dorado game by putting $20 in the machine and playing up to 110 credits. No skill was involved in playing the game. Sergeant Bidart turned on the Winner's Circle game and tested it by putting money in the currency slot. The game is a horse race with eight horses which run across the screen, and the player is supposed to bet on a horse. Sergeant Bidart was not certain how a player was supposed to win so he did not play the game. Based on his experience and training, he concluded that the Winner's Circle is a game of chance commonly used in gambling establishments, and that the screen on the Winner's Circle game was consistent with other Winner's Circle games that he had observed. At the time of the raid, the Bosconian/El Dorado machine contained $1.50 and the Mario Brothers/Winners Circle contained $8.00. There was no money in the Chop-Lifter machine. Ms. Rodriguez told Sergeant Bidart that she had emptied the money from the machines just prior to the raid. During the raid, the police found a blue bank deposit bag containing $1,116.00 in Ms. Rodriguez's purse. Ms. Rodriguez told the police that she had collected the money from the video game machines and that approximately $100 represented the receipts from the music machine. At the time of the raid Ms. Rodriguez said that Tokyo Video owned the machines and collected the money from the machines each week. She gave 40 percent of the receipts to Tokyo Video and kept the remaining 60 percent. She admitted that she had had the machines for three months and that her average net receipt was $300 per week. The police also found yellow slips of paper in Ms. Rodriguez's purse. Ms. Rodriguez told Mr. Bidart that the slips were some of the slips that Tokyo Video gives to her to show how much money she makes on the machines. She gives the slips to her accountant who records the take from the machines as sales. She pays the appropriate tax and normally destroys the slips after reporting the amounts to her accountant. One of the slips is dated 9-29-92 and the other is dated 12-15-92. The other slip is undated. Based on Ms. Rodriguez's admission that the slips show her split with Tokyo Video on the machines, it is concluded that the names under the heading "Modelo Equipo," "Caballo", "Dorado" and "C. Bonus" refer to the Winner's Circle game, the El Dorado game, and the Chop-Lifter game. The slips show that credits were deducted from the amounts that were put in the machines to arrive at the net amounts that would be due Respondent and Tokyo Video. Tally sheets are used in gambling establishments to record payouts to the owners. In the video game gambling business a credit usually represents 25 cents. Tally sheets record the number of credits and games played on the machine. The net due the owners is calculated by dividing the total credits by four. The yellow slips of paper found in Ms. Rodriguez' purse at the time of the raid are tally sheets. Normally, owners of bars with gambling machines will keep records on the premises which show how much they have paid out to players on a particular day or show specific wins. The police also found three sales books. The books contain some pages with names and dates written at the top and had cash entries from 5 to 200. Most of the entries are for 200. Several entries are for an individual named Felix showing cash payments to him. One of the books shows a drawing resembling an El Dorado Super Seven screen when all 7's come up, with the exclusion of the two side scores from the center. The drawing shows three 7's horizontally across the top and across the bottom and three 7's vertically in the center. Above the drawing are the words, "Pago a Felix $2,812.50 Cash." Underneath the drawing is the notation "32 Bet" and underneath that is "11,250 Credit" with an arrow going from the 11,250 to the $2,812.50 above the drawing. The police also found a composition book which contains one page with dollar amounts in two columns titled "pago" and "calro maq." Ms. Rodriguez told Sergeant Bidart that she knew the machines were illegal but that since numerous bars in Hialeah and Opalocka had them she was going to have them too.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding Respondent guilty of violating Sections 849.01, 849.15, and 849.09(1)(k), Florida Statutes and revoking Respondent's alcoholic beverage license No. 23-02039, series 2-COP. DONE AND ENTERED this 29th day of November, 1993, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of November, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-2969 To comply with the requirements of Section 120.59(2), Fla. Stat. (1991), the following rulings are made on the Petitioner's proposed findings of fact: Petitioner's Proposed Findings of Fact. Paragraphs 1, 2, and 3 accepted in substance. Paragraph 4 accepted in substance with the exception of the last sentence. The evidence did not show that Sgt. Bidart testified as an expert witness in the six trials. Paragraphs 5 and 6 accepted in substance. Paragraph 7 accepted in substance with the exception of the third to last sentence. Sgt. Bidart stated that he was not exactly sure how a winner is determined in the Winner's Circle game and that is why he did not play the game. Paragraph 8 accepted in substance with the exception of the proposed finding that an El Dorado game would become a poker game. Sgt. Bidart testified that an El Dorado game would become a High-Low game as a bonus. Paragraph 9 accepted in substance with the exception of the title of the game as "Cherry Blossom." Sgt. testified that Ms. Rodriguez admitted the machine could display a Cherry Bonus game. Paragraphs 10, 11 and 12 accepted in substance. Paragraph 13 accepted in substance with the exception of the next to last sentence which is rejected to the extent that it infers that the method of calculation described Sgt. Bidart was admitted by Ms. Rodriguez. She admitted the slips were used to show how much money she received, but not how her 60 percent share was calculated. Paragraphs 14, 15 and 16 accepted in substance. COPIES FURNISHED: Miguel Oxamendi, Esquire Assistant General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007 Emmanuel Perez 2121 Ponce de Leon Boulevard, Suite 240 Coral Gables, Florida 33134 Jack McRay Acting General Counsel Department of Business Regulation 1940 North Monroe Street Tallahassee, Florida 32399 John J. Harris Acting Director Department of Business Regulation 1940 North Monroe Street Tallahassee, Florida 32399
The Issue The issue is whether respondent's alcoholic beverage license should be disciplined for the reasons stated in the notice to show cause.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background At all times relevant hereto, respondent, Lehigh Acres Memorial Post #4174, VFW of U. S., Inc. (respondent or club), held alcoholic beverage license number 46-00555, series 11-C, issued by petitioner, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco (Division). Respondent used the license to sell alcoholic beverages at its club located at 18 South Homestead Road, Lehigh Acres, Florida. Under the license, respondent was authorized to sell alcoholic beverages to its members and guests, provided such guests signed a guest book and the members paid for all drinks. Described by respondent's qualified representative as a "day of infamy", October 29, 1989, was the day on which petitioner conducted a search of respondent's licensed premises. The search was conducted after Division investigator Steven H. Thompkins visited the club on three prior occasions in October 1989 in an undercover capacity. Those visits were prompted by an anonymous complaint that the club was engaged in illegal gambling activities. Based upon information uncovered during the three visits, a search warrant was obtained from a local judge, and two Division investigators and three Lee County deputy sheriffs entered the licensed premises on Sunday afternoon, October 29, during the midst of a Bingo game being attended by forty or fifty club members and their guests. Thereafter, a notice to show cause was issued by the Division alleging that respondent had violated chapter 561 in several respects. The issuance of the notice to show cause prompted respondent to initiate this proceeding. Search Warrant A search warrant was obtained by Thompkins and an assistant state attorney from a local county judge on October 27, 1989. The probable cause was based upon an affidavit filed by Thompkins which requested that the judge issue the warrant to search the premises of the club in "the daytime or the nighttime, or on Sunday as the exigencies of the occasion demand or require." Although the warrant was executed on a Sunday, the warrant did not refer to Sunday or specifically authorize a search to be made on a Sunday. Rather, after referring to Thompkins' affidavit, describing the premises to be searched, and citing the type of gambling paraphernalia believed to be on the premises, the warrant read in relevant part as follows: THESE ARE THEREFORE to command you with proper and necessary assistants of the law enforcement agencies, to enter and to search the above described premises referred to as VFW Post 4174, 18 South Homestead Road, Lehigh Acres, Lee County, Florida, for the property described above: a daily number book, betting pool sheets for baseball, pull tab cards for a game of chance instant bingo, two video poker machines, a green bag or envelope, and papers or documents or currency used in connection with the gambling operation. When the warrant was executed on the club premises, the affidavit was not physically attached to the warrant. This finding is based on uncontroverted testimony presented by respondent. Count (1) Count (1) of the notice to show cause alleges that between October 15 and October 22, 1989, respondent, through its agents Walter Adams and Cindy Carboni, "did sell alcoholic beverages to a nonmember to wit: Stephen Thompkins." Respondent has stipulated that Adams, a club bartender, did sell a beer Thompkins on October 15 and 22, 1989, and a mixed drink on October 22, 1989. The record also shows that Thompkins purchased a mixed drink from Carboni on October 19, 1989. All sales were in the club bar on the licensed premises. Thompkins was not a member of the club, had not signed in on the club's guest book, and was not a member's guest. The record further shows that Thompkins did not mislead or deceive the club bartenders into believing that he was a member or guest. Therefore, the allegation in Count I has been sustained. Count 2(a) Part (a) of the second count charges that between October 15 and 29, 1989, the club possessed "Bingo pull tabs tickets and door prize raffle tickets within (its) licensed premises which are gambling devices and had `been used for gambling purposes contrary to F.S. 849.231(1)." Each Sunday afternoon around 1:45 p.m., the club conducted a Bingo game. In order to play Bingo and receive a Bingo card, a patron had to purchase a minimum of four double numbered tickets at fifty cents per ticket. Half of the ticket was retained by the club and used as the basis for a drawing at intermission. On his October 22, 1989, visit, agent Thompkins was a winner on the drawing and received a Florida Lottery Wild Winner's ticket as a prize. For fifty cents each, a patron could also purchase Bingo pull tab cards which are small cards having five removable tabs. These cards were sold only on Sundays by Robert Wagner, a club officer, during the 3:30 p.m. intermission. If the right combination (e.g. the letters "BINGO") was underneath the tabs, a customer could win cash prizes. Indeed, on Thompkins' first visit, one of the forty tickets he purchased for $20 was a winner, and Thompkins received a $51 cash prize. The club also conducted a daily drawing wherein patrons purchased for twenty-five cents a chance to win by placing their names in small capsules which were kept in a large plastic jar. At the end of each day a capsule was drawn out of the jar at random, and the name selected won a prize. To keep track of the participants, the club required them to write their names in a "daily book" (a stenographer's pad) while the prize money was retained in a coffee can kept for that purpose. In addition to the daily drawings, the club conducted what was called a weekly 50:50 drawing which involved essentially the same procedure as the daily drawing, that is, patrons purchased chances by placing their names into small capsules which were kept in a plastic jar until the lucky capsule wad drawn once a week. In both games, the club retained a portion of the moneys wagered by the patrons. Thus, the club was engaged in gambling activities as alleged in the notice to show cause. Count (2)(b) The second portion of Count (2) alleges that between October 15 and 29, 1989, the club "did possess World Series Baseball Pool Sheets and two (2) video poker machines which are gambling devices and had been used for gambling purposes." In the club bar, the bartender (Adams) maintained a World Series pool sheet, which was a large card with ten numbered spaces across the top and ten numbered spaces down, or one hundred spaces in all. Individuals participating in the pool signed their names in various blocks of the card indicating what they thought the score would be. Each chance cost twenty-five cents, and on his first visit, Thompkins purchased twelve chances for three dollars. Such a sheet was also maintained for subsequent World Series games. Therefore, it is found that the club possessed baseball pool sheets for gambling purposes. During the time period in question, the club maintained two Greyhound electric video game machines on its licensed premises. One was known as "Hi Lo Joker Poker", the other as "Super Poker." Each game required a minimum quarter deposit to play. Agent Thompkins observed several club patrons play the machines and Thompkins himself played the Joker Poker machine, albeit unsuccessfully. The club bartender explained to Thompkins that a minimum of forty points had to be earned on the machine before credit would be recorded and that every forty points equaled ten dollars in credits or winnings. Through the expert testimony of Pinellas County sheriff's detective Brian Beery, it was established that the two machines had been modified by a computer chip so that their character was no longer amusement in nature but instead were illegal gambling machines. In their modified state, the machines could be reset and cleared after each player with a remote control device operated by the bartender. Moreover, the payoff odds were controlled by the club. According to Beery's uncontradicted testimony, the club retained 56% of all moneys deposited in the machines. Beery added that the machines are generally modified at the lessee's or renter's direction and that the owner of the machines shares in the profits. The name of the owner of the machines is not of record. According to the club's past commander, the machines had been on the premises for less than two weeks prior to the October 29 raid. This was not controverted. Even so, for those two weeks, the club was utilizing video poker machines for gambling purposes as alleged in the notice to show cause. Count (3) The third count charges that between October 15 and 29, 1989, respondent maintained "a gambling house by allowing video poker machines, "bingo" pull tabs tickets and door prize raffles to be used for gambling purposes within (its) licensed premises." The evidence detailed in findings of fact 7, 8 and 11 supports a finding that the club maintained video machines, Bingo pull tab tickets and door prize raffles for gambling purposes during the time period in question. Count (4) The last count alleges that respondent "did conduct lottery drawings by having 3rd and 4th game World Series Baseball Pool and conducting drawings at the intermission of bingo each Sunday." Respondent has admitted that Walter Adams, the club's bartender, conducted a World Series pool for two games during the 1989 series. A description of such activities is found in finding of fact 10. The club's only defense to this allegation was that Adams was not authorized to conduct the pool, and the canteen (bar) was not under the post commander's direct responsibility. Even so, this charge has been sustained. The evidence also shows that during the intermission of the Bingo game on October 15 and 22, 1989, Robert Donahue, a post member, conducted a drawing for a prize. Additional findings as to this allegation are contained in finding of fact 7. Therefore, this charge has been established. Penalty and Mitigating Evidence The Division's district supervisor has recommended that respondent's license be revoked. This recommendation is based on the fact that pursuant to a consent agreement executed in October 1986 respondent suffered a $2,000 fine and a thirty day suspension of its license for illegal gambling activities. Further, the supervisor pointed out that: the club has been lectured on illicit gambling as recently as August 7, 1989. Moreover, the club was given a verbal warning concerning illegal alcoholic sales to non- members on January 16, 1986. Finally, the Division calculated what it believed to be the amount of profits realized by the club from its gambling activities. These profits exceeded $5,000 which, according to the supervisor, is the threshold amount of illegal income to justify revocation of a license. In mitigation, the club contended that it did not know that many of the activities were illegal and that it was simply engaged in activities that are commonplace in other clubs and business enterprises. Moreover, the club points out that much of its profits from gambling were donated to charitable causes. In addition, the club building is now in need of a new roof and the club contends it cannot afford to lose the revenues that are generated by the liquor license. Finally, the club maintains that Adams' activities were not authorized, and the club should not be penalized for his actions.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty as charged in the notice to show cause and that its license be REVOKED. DONE and ENTERED this 19th day of October, 1990, in Tallahassee, Florida. DONALD R. ALEXANDER 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 of October, 1990.
The Issue The issue in this case concerns the application of Section 24.115(4), Florida Statutes, to a claim for payment of a $5,000.00 lottery prize where the winning lottery ticket was purchased by two individuals, one of whom has a substantial court-ordered child support arrearage, one of whom does not, and the prize claim form is submitted by the individual who owes child support. The Petitioners contend that only half of the prize should be subject to the outstanding child support debt. The Respondents contend that the entire prize should be subject to the outstanding child support debt. Shortly after the filing of the request for hearing in this case, the Office of the Comptroller filed a Motion To Join Indispensable Parties, by means of which it sought to join the Department of the Lottery and the Department of Health and Rehabilitative Services as parties to this case. Both of the last mentioned agencies agreed to being joined as parties and neither Petitioner objected to the joinder. Accordingly, the Department of the Lottery and the Department of Health and Rehabilitative Services were joined as parties respondent. At the hearing both Petitioners testified and also offered exhibits. The Respondents presented the testimony of several witnesses and also offered several exhibits. At the conclusion of the hearing, the parties were allowed ten days within which to submit proposed recommended orders. All parties filed post-hearing submissions containing proposed findings of fact. All proposed findings of fact are specifically addressed in the appendix to this recommended order.
Findings Of Fact Based on the testimony of the witnesses and the exhibits received in evidence at the hearing, I make the following findings of fact. Shortly after the Florida Department of the Lottery began selling lottery tickets, the two Petitioners, Lawrence R. Lindbom and Donald Johnston, began the regular practice of buying lottery tickets together. They agreed that they would make equal contributions to the cost of the lottery tickets and that they would share equally in the proceeds of any lottery prizes resulting from their co-purchased lottery tickets. On January 26, 1988, consistent with the foregoing agreement, Petitioner Lindbom purchased four instant game lottery tickets. Petitioner Johnston had contributed funds to pay half of the cost of the four tickets. Lindbom retained two of the tickets and gave the other two tickets to Johnston. At Johnston's place of employment, Lindbom scratched the two lottery tickets he had retained. One of the two was a $5,000.00 winning ticket. At the suggestion of some third party, Lindbom wrote his name on the winning ticket. He then showed the ticket to Johnston, and the other people present congratulated the two of them on their good fortune. The two Petitioners agreed that Lindbom would submit the ticket for payment in both of their names. On January 27, 1988, Lindbom traveled to the Jacksonville District Office of the Department of the Lottery, where he inquired about filling out a claim form in two names. He also inquired as to whether any money would be deducted from the prize. Upon being advised that only one name could be placed on the claim form and that no money would be deducted from the prize, Petitioner Lindbom called Petitioner Johnston to advise him of what he had been told at the Jacksonville District Office. Johnston told Lindbom to go ahead and file the claim in Lindbom's name and they would split the prize when it was received. Thereupon, Petitioner Lindbom filled out a Florida Lottery Winner Claim Form. The information he placed on the claim form included information about the lottery ticket and Lindbom's name, address, telephone number, and social security number. At the bottom of the claim form, Lindbom signed a printed statement reading as follows, in pertinent part. "Under penalty of law, I swear that to the best of my knowledge and belief, the name, address, and social security number correctly identify me as the recipient of this payment." The claim form and winning ticket were submitted to the Tallahassee office of the Department of the Lottery for validation and payment in accordance with that Department's procedures. The Department of the Lottery provided the Department of Health and Rehabilitative Services a list of $5,000.00 winners which contained the name of Lawrence Lindbom. DHRS determined from its records that there was an arrearage in child support payments by Lawrence Lindbom in the amount of $12,014.65. On February 1, 1988, DHRS certified the child support arrearage to the Department of the Lottery in accordance with Section 24.115(4), Florida Statutes (1987). On February 5, 1988, the Department of the Lottery forwarded the entire $5,000.00 claimed by Lindbom to the Office of the Comptroller of the State of Florida. On February 8, 1988, the Office of the Comptroller notified Lindbom by certified mail of its intention to apply the entire $5,000.00 prize toward Lindbom's unpaid court-ordered child support, with the result that no payment would be made to Lindbom. Following receipt of the letter from the Office of the Comptroller, Lindbom and Johnston jointly wrote a letter to the Comptroller protesting the proposed disposition of the prize and requesting a hearing. At all times material to this case, the Department of the Lottery had in effect Rule No. 53ER87-43, F.A.C., titled "Procedure for awarding prizes." That rule reads as follows, in pertinent part: (6) Until such time as a name is imprinted or placed upon the back portion of the lottery ticket in the designated area a lottery ticket shall be owned by the physical possessor of such ticket. When a name is placed on the rear of the ticket in the designated place, the person whose name appears in that area shall be the owner of the ticket and shall be entitled to any prize attributable thereto.
Recommendation For all of the foregoing reasons, it is recommended that the Office of the Comptroller issue a final order in this case providing for payment to the Department of Health and Rehabilitative Services of the entire $5,000.00 prize originally claimed by Petitioner Lindbom. DONE AND ENTERED this 9th day of June, 1988, at Tallahassee, Florida. MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of June, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-1176 The following are my specific rulings on all proposed findings of fact submitted by all parties. Findings proposed by the Petitioners The Petitioners' proposal consisted of a letter in which they assert three specific reasons that entitle them to the relief sought. The factual aspects of those three reasons are addressed below. The legal aspects have been addressed in the conclusions of law. Reason 1. Accepted as finding of fact. Reason 2. Rejected as subordinate and unnecessary details. Reason 3. Rejected as constituting argument rather than facts. Findings proposed by the Respondents The Respondents filed a joint proposed recommended order. The paragraph references which follow are to the paragraphs of the Findings of Fact section of the Respondents' proposed recommended order. Paragraphs 1 and 2) Accepted in substance, with the exception of the implication that the Petitioners were not co- purchasers of the lottery tickets. Paragraph 3: First sentence accepted. Second sentence rejected as inconsistent with the evidence. Paragraphs 4, 5, 6, and 7: Accepted. Paragraph 8: Omitted as unnecessary procedural details covered by introduction. Paragraph 9: Accepted. Paragraph 10: Accepted in substance. First unnumbered paragraph following Paragraph 10: Rejected as constituting subordinate and unnecessary details. Second unnumbered paragraph following Paragraph 10: Accepted. Third unnumbered paragraph following Paragraph 10: Rejected as irrelevant. Fourth unnumbered paragraph following Paragraph 10: Rejected as irrelevant or subordinate and unnecessary details. Fifth unnumbered paragraph following Paragraph 10: First sentence accepted. The reminder is rejected as argument rather than proposed findings of fact. COPIES FURNISHED: Mr. Lawrence R. Lindbom 3542 Tiara Way, West Jacksonville, Florida 32217 Mr. Donald Johnston 12888 Beaubien Road Jacksonville, Florida 32225 Jo Ann Levin, Esquire Senior Attorney Office of the Comptroller The Capitol, Suite 1302 Tallahassee, Florida 32399 Chriss Walker, Esquire Department of Health and Rehabilitative Services 1317 Winewood Blvd. Tallahassee, Florida 32399-0700 Thomas A. Bell, Esquire Department of Lottery 250 Marriott Drive Tallahassee, Florida 32301 The Honorable Gerald Lewis Comptroller The Capitol Tallahassee, Florida 32399-0350
The Issue The issue presented is whether Respondent is guilty of the allegations in the Administrative Complaint filed against him, and, if so, what disciplinary action should be taken against him, if any.
Findings Of Fact At all times material hereto, Respondent Clivalee Mundle was the holder of a slot machine occupational license issued by the State of Florida and numbered 7937616-1051. That license expired June 30, 2008, and has not been re-issued. At all times material hereto, Respondent was employed as a slot supervisor at The Isle Casino and Racing at Pompano Park, a licensed Florida pari-mutuel and slot machine facility located in Pompano Beach, Florida. On November 16, 2007, a senior attendant reported to the slot chip manager an incident involving Respondent. She reported that she had gone to the cage service window to use the computer. The cage is where the money is held in a casino. She reported that while she was there, Respondent came in and began assisting her. When he reached into his coat, a $100 bill fell out and onto the floor. She placed her foot next to the bill and asked Respondent if it were his. Respondent picked it up and acted, in her opinion, nervous. Employees at the casino are instructed to keep their own money in their wallets and to not have loose cash on them when they are on the casino floor. They are also instructed to keep any casino money in sight so that the money surveillance cameras can track it. Based upon the report he received, the slot chip manager contacted surveillance personnel and requested them to view the surveillance videos that recorded the incident. Upon doing so, those employees reported to him that Respondent had earlier obtained a $100 bill from the cage to pay out a jackpot on slot machine A-50-02 but that he subsequently never went to that machine to do so. Further, the videos showed that the jackpot on that machine had already been paid before Respondent obtained the $100 bill he obtained from the cage. Based upon that surveillance report, the slot chip manager viewed surveillance videos from prior dates. The review of the surveillance videos revealed the following transactions. On November 8, 2007, Respondent was at the cage service window filling out a paid-out cash slip to obtain a $100 bill when the slot chip manager came in. Rather than completing what he was doing, Respondent folded the form and put it in his pocket. Later that day, he turned in the paid-out slip and received a $100 bill. The form he filled out stated that he needed the money to settle a guest dispute. However, he never gave the money to anyone between the time he obtained it and the time he left the casino at the end of his shift. The surveillance videos for November 9, 2007, show Respondent filling out a paid-out slip at the cage, receiving a $100 bill, and concealing that bill inside a piece of paper in his coat pocket. The slip he filled out represented that he was obtaining the money for a guest dispute at machine A-15-05. Later that same day, he filled out another cage slip for a jackpot pay-out at machine A-50-08. When he received the $100 bill requested, he put it under a piece of paper on a clipboard. Surveillance videos showed that the jackpot on that machine had been paid out before Respondent obtained the $100. Surveillance videos did not show Respondent giving either of those $100 bills he obtained on November 9 to anyone in the casino. The videos show that on November 13, 2007, Respondent paid a jackpot to a customer who then gave Respondent her player's card. Respondent took her player's card to the player's card window, had a discussion with the attendant, and then returned to the player and returned her card. He then went to the cage service area, filled out a cage paid-out slip for $100 for guest satisfaction, placed the $100 underneath papers on a clipboard, and left the cage area. Between that time and the end of his shift, Respondent did not give that money to anyone. None of the monies Respondent obtained from the casino cage as described in the above Findings of Fact was used for a legitimate business purpose. Respondent failed to complete the transactions for which he allegedly received the monies. Rather, Respondent retained these monies for his own use. Respondent admits to dropping the $100 bill on November 16, 2007. His explanation is that he had previously left the casino and had picked up some relatives and taken them to his home. He stated that the $100 bill was given to him by one of those relatives so he could pick up formula and diapers on his way home. The surveillance videos do not show Respondent leaving the casino or returning prior to the incident. On November 29, 2007, Respondent was terminated from his employment by the casino. On February 7, 2008, The Isle Casino and Racing at Pompano Park issued to Respondent a Notice of Barrment [sic], which barred Respondent from the premises of the casino permanently.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered (1) finding Respondent guilty of the allegations in the Administrative Complaint filed against him, (2) excluding Respondent from all facilities of all slot machine licensees in the State of Florida, and (3) finding Respondent ineligible for a slot machine occupational license. DONE AND ENTERED this 11th day of February, 2009, in Tallahassee, Leon County, Florida. S LINDA M. RIGOT Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of February, 2009. COPIES FURNISHED: Clivalee Mundle 4689 Northwest 22nd Street Coconut Creek, Florida 33063 David Perry, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 40 Tallahassee, Florida 32399-2202 Ned Luczynski, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street, Suite 40 Tallahassee, Florida 32399-2202 David J. Roberts, Director Division of Pari-Mutuel Wagering Department of Business and Professional Regulation 1940 North Monroe Street, Suite 40 Tallahassee, Florida 32399-2202
