Findings Of Fact At all times relevant hereto David L. Jordan was certified in firearms instruction (Stipulation by the parties). On July 20, 1990, while conducting a firearms training class for probation and parole officer candidates, Respondent, while demonstrating use of a shotgun, pointed a shotgun at a female student at close range and pulled the trigger. Respondent was attempting to demonstrate the intimidating nature of a shotgun to the students. Prior to pointing the shotgun at the student, Respondent had checked the magazine and chamber of the gun to insure the gun was unloaded and showed this check to most of the students in the class. He then, with his back to the female student, operated the slide on the pump shotgun by pulling the rack back and then forward, turned toward the student with the shotgun muzzle within a foot of the student's face and pulled the trigger. This incident was extremely disturbing to the student at whom the gun had been pointed and to most of the rest of the class as well. During the morning session of the firearms training class, the senior instructor in the class, Sergeant Oates, had pointed a revolver at members of the class, and both Respondent and Oates had allowed students to point revolvers at other students to practice squeezing the trigger while dry firing. It is a cardinal safety rule when handling firearms to never point a firearm at another person unless compatible with the right to use deadly force. (Exhibits 1 and 2) The Florida Firearms Training Manual (Exhibit 1) expresses the rule as "Never point a firearm at anyone unless compatible with deadly force departmental policy and Chapter 776, Florida Statutes." It is gross negligence for an instructor in firearms training to point a weapon at another person or allow students to point firearms at other persons. The training of the class which Respondent was instructing on July 20, 1990, was conducted with functional weapons.
Recommendation It is recommended that the certification of David L. Jordan as a firearms instructor be revoked. This recommendation is in accordance with Rule 11B- 20.0012(1), Florida Administrative Code. RECOMMENDED this 20th day of June, 1991, in Tallahassee, Florida. K. N. AYERS Hearing Officer Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of June, 1991. COPIES FURNISHED: Michael R. Ramage, Esquire Post Office Box 1489 Tallahassee, FL 32302 David L. Jordan 6213 Watermark Drive Apartment 206 Riverview, FL 33659 Jeffrey Long, Director Criminal Justice Standards Training Commission Post Office Box 1489 Tallahassee, FL 32302 James T. Moore Commissioner Department of Law Enforcement Post Office Box 1489 Tallahassee, FL 32302
The Issue The issues for determination are: (1) Whether Respondent, as Director of the Florida State Athletic Commission ("Athletic Commission") violated Subsection 112.313(2), Florida Statutes, by soliciting a $100,000 donation from Don King and/or Don King Productions, Inc., on behalf of the Florida State Boxing Foundation ("Foundation") which was established in part by Respondent; (2) Whether Respondent violated Subsection 112.313(4), Florida Statutes, by (a) accepting the $100,000 donation from Don King or Don King Productions, Inc., on behalf of the Foundation, when he knew or should have known that the donation may have been given to influence his official actions relative to his advocating for the acceptance of long-term promotional contracts in Florida by the Athletic Commission and/or the licensing of Don King and/or Don King Productions, Inc., as a promoter despite the existence of a pending indictment in violation of the Athletic Commission rules; (b) soliciting boxing officials for political contributions and donations to the Foundation, and soliciting a boxing official for a loan to Ms. Cathy Reed and travel expenses for Ms. Reed; (3) Whether Respondent violated Subsection 112.313(6), Florida Statutes, by (a) soliciting funds for the Foundation from persons or entities regulated by the Athletic Commission; (b) soliciting political contributions from persons regulated by the Athletic Commission; (c) signing a letter prepared by boxing promoter Don King's attorney on Athletic Commission stationery, which indicated the Athletic Commission's interpretation of Section 548.056, Florida Statutes, as stated in letters written by the former Executive Secretary, was the former Executive Secretary's personal opinion rather than the opinion or policy of the Athletic Commission, in order to benefit Don King or Don King Productions, Inc; (d) preparing and reading a position paper opposed to the position taken by the former Executive Secretary of the Athletic Commission relative to the interpretation of Section 548.056, Florida Statutes, and denying that the earlier position was, in fact, the position of the Athletic Commission in order to strengthen the arguments of Don King or Don King Productions, Inc., for the use of exclusive long-term promotional contracts in Florida, when he knew the contrary to be true, or as a reward for the $100,000 contribution to the Foundation; (e) lying to the members of the Athletic Commission who relied on his representations at its November 5, 1998, meeting regarding the preparation of the position paper he read to the commission at its August 13, 1998, meeting; (f) soliciting tickets or complimentary admissions to boxing matches for his or other Athletic Commission members' guests from promoters; (g) soliciting a loan and travel expense payments from Boxing Judge Peter Trematerra; (h) rewarding Mr. Trematerra with an assignment to judge a World Title fight for telling the Athletic Commission what Respondent wanted him to say, despite Mr. Trematerra's allegedly not having the requisite experience to warrant such an assignment; (i) not giving Boxing Judge Paul Herman boxing assignments that his experience may have warranted after he refused to appear and testify as to what Respondent wanted him to say before the Athletic Commission; (j) making judging assignments based on personal considerations of perceived loyalty or disloyalty to Respondent, rather than on the experience levels of judges; directing Athletic Commission staff to remove Mr. Trematerra's and Mr. Herman's names from fight assignments after they provided affidavits concerning Respondent's misconduct to Department of Business and Professional Regulation's Inspector General; (l) representing falsely to the Salvation Army and the public on Athletic Commission stationery that David Walker had completed 16 hours of his obligatory community service; and (4) Whether Respondent violated Subsections 112.3148(3) and (4), Florida Statutes, by soliciting and accepting tickets and free admissions from promoters, and, if Respondent is guilty of any of these alleged offenses, what penalty is appropriate.
Findings Of Fact Respondent, Morris Michael "Mike" Scionti, was Executive Director of the Athletic Commission from May 6, 1996 through March 11, 1999. During his pre-employment interview with Commissioners of the Athletic Commission, Respondent advanced his vision to establish a foundation to assist boxers in obtaining job training, education, and other benefits. The Athletic Commission, through its Commissioners, gave conceptual approval to the creation of a foundation but did not want the Athletic Commission or Respondent to be directly involved with the foundation. Respondent initiated the formal creation of the Florida State Boxing Foundation, Inc. ("Foundation"), in June 1997. The Foundation obtained 501(c)(3) tax-exempt status in December 1997. Respondent was never an employee, officer or trustee of the Foundation. After the formation of the Foundation, there is no evidence of formal involvement of either Respondent or the Athletic Commission in its affairs. Respondent advocated the Foundation to individuals interested in boxing and advised the Athletic Commission of the status of the Foundation at Athletic Commission meetings. Early in 1997, at the request of Don King ("King"), a successful and controversial boxing promoter, he and Respondent met at King's office in South Florida. Prior to this meeting the parties had not known each other. During the discussion of their common interest, boxing, King advised that he was moving his entire boxing operation to Florida. In the discussion, Respondent mentioned his vision of a foundation to assist boxers. King indicated that he thought the foundation was a wonderful idea and offered to donate $100,000 to get the foundation started. The evidence presented clearly demonstrates that Respondent did not solicit the donation from King. Knowing that the Athletic Commission had instructed him to "stay at arms length from the Foundation," Respondent did not initially accept King's offer; he reported the offer at the next Athletic Commission meeting where a cautious, tacit approval was received. Respondent testified that he would have refused the donation had the Athletic Commission voiced disapproval. It was not inappropriate for Respondent, as Executive Director of the Athletic Commission, to advocate and publicly support a foundation chartered to provide job training, education and other benefits to boxers. On January 12, 1998, shortly after the Foundation received 501(c)(3) status, Don King Productions, Inc., tendered a $100,000 check to the Florida State Boxing Foundation, Inc. No evidence was presented indicating that Respondent directly or indirectly benefited from King's $100,000 donation to the Foundation or that the donation was made based upon any understanding that Respondent's judgement or any official action would be influenced by the donation. Nor is there any evidence that Respondent should have known that the donation was given to influence any official action by Respondent. Boxing promoters, who do business in Florida, must apply for an annual license. Don King and/or Don King Productions, Inc., had been licensed in Florida in 1993, 1994, 1995, 1996, and 1997. The license application dated January 13, 1998, fails to reveal a Federal indictment for insurance fraud in March 1997, although it improperly lists a license suspension for wire fraud in New Jersey. Relying on the 1998 license application (which did not reveal the March 1997 insurance fraud indictment), the Athletic Commission staff in the Tallahassee office issued Don King Productions, Inc., a 1998 promoter's license. In August 1998, after the discrepancy was discovered, the Athletic Commission issued King a Rule to Show Cause as to why his 1998 license should not be suspended or revoked for failure to report the 1997 insurance fraud indictment. The 1998 license renewal was handled through the Athletic Commission's Tallahassee office. Respondent's office was in Tampa; he was not directly involved in issuing the 1998 license. At the Rule to Show Cause hearing, Respondent blamed the Tallahassee office staff for not finding King's omission. "Exclusive" or "long-term" promotional contracts between boxers and promoters, although a standard in the boxing industry and widely accepted, have been a source of controversy in Florida. Apparently, there was a division of opinion among Commissioners of the Athletic Commission as to the appropriateness of such contracts. Although the Athletic Commission had not taken a formal position on the subject, Respondent's predecessor, who was personally opposed to such contracts, authored several letters indicating that such contracts were not enforceable under Florida law. Respondent did not share his predecessor's negative opinion of "exclusive" or "long-term" promotional contracts, to the contrary, he believed such contracts to be beneficial to boxing. Respondent sought the advice of individuals involved in boxing, including employees of King, on the subject. Don King Productions, Inc., and other promoters would benefit if "exclusive" or "long-term" promotional contracts were recognized and enforceable in Florida. On June 19, 1998, Respondent sent a letter on official state stationery to Charles Lomax, attorney for Don King Productions, Inc., advising him that the prohibition on "exclusive" or "long-term" promotional contracts in Florida was merely his predecessor's personal opinion. He stated he would keep Mr. Lomax updated on the progress of this matter. During the August 8, 1998, meeting of the Athletic Commission, Respondent presented a memo which advocated promotional contracts, clearly indicated his disagreement with the position taken by his predecessor on the subject and recommended that the Athletic Commission permit such contracts subject to reasonable regulation. Subsequent to the meeting, Commissioner Terry James had occasion to examine the Athletic Commission's file on promotional contracts. When Commissioner James reviewed the file, he noticed the computer tags on the documents in the file were the same as the tags he had seen on Sonny Holtzman's documents. Mr. Holtzman represented King on matters before the Commission. Although Don King Productions, Inc., and other promoters benefited from Respondent's support of "exclusive" or "long-term" promotional contracts, no evidence was presented that demonstrated that Respondent's support was a result of King's donation to the Foundation. The advocate presented three witnesses, Peter Tremetera, Paul Herman, and Shelly Bradshaw, who through their actions during Respondent's tenure as Executive Director of the Athletic Commission and their demeanor while giving testimony at the final hearing, demonstrated such a negative bias toward Respondent that much of their testimony is not credible. The solicitation and acceptance of free tickets and misuse of "pass lists" to boxing events by Commissioners and staff of the Athletic Commission has historically been a problem. This is evidenced by a 1991 Ethics Commission case involving a former chairman of the Athletic Commission [In re: James Resnick, 14 F.L.A.R. 1001 (1991)], a March 26, 1997, inquiry response from a Ethics Commission staff attorney on the subject, and specific direction on the subject from the Athletic Commission staff attorney. It is clearly appropriate for Commissioners and staff who have a legitimate function associated with a boxing event to be admitted to the event without paying an admission fee. It is similarly clear that it is inappropriate for relatives, friends, political associates, and other individuals who have no legitimate Athletic Commission function to gain free admission to a boxing event as a result of an association with the Athletic Commission. Respondent gave Peter Trematerra free tickets to several boxing events. Respondent placed an attorney who had no Athletic Commission involvement on the pass list "all the time." Respondent solicited free tickets from a promoter in the Lou Duva organization. Respondent signed a receipt for twenty 75-dollar tickets and thirty 50-dollar tickets for a January 31, 1998, boxing event at the Ice Palace in Tampa. During his tenure as Executive Director, Respondent solicited and accepted free tickets to boxing events from event promoters, or caused the names of individuals who had no legitimate function related to the Athletic Commission to be placed on "pass lists" which allowed free admissions to boxing events. Evidence was presented that indicated that not only Respondent but others associated with the Athletic Commission solicited and accepted tickets or passes for individuals who had no legitimate function with particular boxing events. In September 1997, David Walker performed 16 hours of community service at the Tampa office of the Athletic Commission Two documents were signed by Respondent, one, a letter dated September 21, 1997, indicating that David Walker had performed 16 hours of community service; the second, a memo indicating that David walker had completed the 16 hours of community service on two Saturdays, September 6 and 13, 1997. David walker testified that he had completed the community service on weekdays.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order and public report be entered finding that Respondent, Morris Michael "Mike" Scionti, violated Subsection 112.313(6), Florida Statutes, to the extent that Respondent solicited and accepted tickets or complimentary admissions to boxing matches as represented in the Order Finding Probable Cause; imposing a civil penalty of $1,000; and issuing a public censure and reprimand; and that the remainder of the violations alleged in the Order Finding Probable Cause be dismissed. DONE AND ENTERED this 4th day of January, 2002, in Tallahassee, Leon County, Florida. 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 4th day of January, 2002. COPIES FURNISHED: Joseph Donnelly, Esquire Veronica E. Donnelly, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Julie A. Reynolds, Esquire 4612 North 56th Street Tampa, Florida 33610 Kaye Starling, Agency Clerk Commission on Ethics 2822 Remington Green Circle, Suite 101 Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Phillip C. Claypool, General Counsel Commission on Ethics 2822 Remington Green Circle, Suite 101 Post Office Drawer 15709 Tallahassee, Florida 32317-5709
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 the Petitioner, American Amateur Mixed Martial Arts, (AAMMA or Petitioner) is entitled to an award of attorney’s fees and costs pursuant to section 57.111, Florida Statutes.
Findings Of Fact AAMMA is a not-for-profit corporation, incorporated under the laws of Florida. It has no full-time employees and utilizes volunteers to conduct its business. Evidence in the record as to AAMMA’s net worth throughout its existence and at the time the case was initiated by the Department of Business and Professional Regulation, State Boxing Commission (Department), demonstrated that AAMMA sustains itself through personal donations from members and fees from a variety of registrations. Evidence further demonstrated that the association was very small with few members and registrations. In fact, AAMMA uses a home gym located on property owned by founders and members Larry and Alice Downs to operate a mixed martial arts/boxing and training school. Mr. Downs’ plumbing business and the Downs’ residence are also located on this property. There was no evidence of the value of the home gym. Additionally, there was no evidence that demonstrated that AAMMA has any ownership interest in the home gym owned by the Downs’ or in any training equipment associated with that gym. More importantly, there was no substantially credible evidence that demonstrated AAMMA was not a separate entity from any of the Downs’ interests or that any of the Downs’ finances should be included in the net worth of AAMMA. On the other hand, the testimony, while not specific, was sufficient to infer that AAMMA’s net worth is well below the $2,000,000.00 threshold for a business to be considered a small business for purposes of section 57.111, Florida Statutes. Moreover, as indicated earlier, AAMMA has no full-time employees. Based on these facts, AAMMA is a small business as defined under section 57.111. The underlying action in this case was initiated by the Department when it filed an Amended Administrative Complaint against AAMMA in DOAH Case No. 12-0142.2/ Additionally, after a lengthy multi-day hearing during which both sides vigorously litigated their side of the case and after both parties filed Proposed Recommended Orders in the matter, AAMMA was the prevailing party in DOAH Case No. 12-0142. In case 12-0142, the Amended Administrative Complaint was based on evidence that was obtained through investigation by the Department both before and after the filing of the Administrative Complaints in the related DOAH Case No. 11-5102.3/ The amended complaint in case 12-0142 alleged in Count I that Respondent allowed minors under the age of 18 to engage in mixed martial arts (MMA) matches on January 28, 2011; February 26, 2011; May 6, 2011; July 16, 2011; and August 3, 2011, in violation of sections 548.006(4), and 548.071(1), Florida Statutes, and Florida Administrative Code Rule 61K1- 1.0031(1)(c), by failing to enforce the ISKA Overview as Respondent’s minimum health and safety standards and engaging in unprofessional conduct. The ISKA Overview contained age limits for participants in amateur MMA matches. The evidence in the underlying case demonstrated that AAMMA allowed athletes under the age of 18 years to participate in MMA matches on the dates alleged in the Amended Administrative Complaint. Clearly, such evidence constitutes a reasonable basis in fact for which the Department may proceed with an administrative action. The Department alleged in Count II of the Amended Administrative Complaint that Respondent was aware of, and allowed, amateur fighters to compete outside the appropriate weight class on July 16, 2011, in violation of sections 548.006(4) and 548.071(1) Florida Statutes, and Florida Administrative Code Rule 61K1-1.0031(1)(c), by failing to enforce the health and safety standards in Respondent’s Rules and ISKA Overview Guidelines, specifically regarding weight classes, as well as, engaging in unprofessional or unethical conduct. Again, the evidence presented in DOAH Case No. 12-0142 showed that Robert Birge, a heavyweight, and Travis Grooms, a super heavyweight, competed against each other at the July 16, 2011, event with a weight difference of 61 pounds. Again, there was a reasonable basis in fact for the Department to proceed with an administrative action. The Department alleged in Count III of the Amended Administrative Complaint that Respondent misled American Legion Post #75 into signing a letter that incorrectly stated the American Legion was the sole sponsor of Respondent’s May 6, 2011, amateur event, thereby violating section 548.071(4), by engaging in unprofessional or unethical conduct. The Department’s evidence showed that Alice Downs, Larry Downs, Jr., and his secretary had access to AAMMA’s letterhead. While the evidence eventually showed that the event held on May 6, 2011, was not sponsored by AAMMA or the American Legion, the Department’s evidence clearly established that the letter to the Department attempting to exempt the May 6, 2011, event from regulation was on AAMMA’s letterhead. From these facts, it was reasonable for the Department to conclude that the letter came from AAMMA at the time it initiated the underlying action and was an attempt to mislead the American Legion into signing the letter in order to gain an exemption under the statutes for the May 6 event. Given these facts, there was a reasonable basis for the Department to proceed with an administrative action. In conjunction with the factual basis of the underlying administrative action, the Department’s legal position in that action was based on its authority to regulate amateur sanctioning organizations and the rules the boxing commission had promulgated under the authority granted to it in chapter 548, Florida Statutes. Ultimately, AAMMA prevailed because the rules of the boxing commission were so vague that they could not be enforced against AAMMA based on the law governing enforcement of such rules. However, the Department, at the initiation of the underlying proceeding and throughout this process, had reasonable legal arguments which it posited to support its interpretation that the ISKA Overview contained the health and safety standards AAMMA was required to follow and that the Department was required to enforce. The fact that the Department did not prevail in its legal position does not support a finding that its position did not have a reasonable legal basis. Given these facts, the Department had a reasonable basis in law to proceed with an administrative action against AAMMA. Finally, the undersigned has reviewed the affidavit as to Attorney’s Fees and Costs filed on September 23, 2013, and the corrections thereto, and finds the fees and costs contained therein to be reasonable. However, since the Department was substantially justified in initiating the underlying proceeding in this action, Petitioner is not entitled to an award of attorney’s fees or costs in this matter.
Findings Of Fact The Findings of Fact contained in the Recommended Order are hereby adopted as the findings of the Division.
Conclusions The State of Florida, Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering (Division) hereby enters this Final Order for the above styled matter. On January 4, 2001, the Division received a Recommended Order from the Honorable Susan B. Kirkland, Administrative Law Judge of the Division of Administrative Hearings. The Recommended Order is attached to this Final Order and incorporated by reference herein. This Final Order is being executed by the Secretary of the Department of Business and Professional Regulation because Dr. Paul F. Kirsch, Director of the Division of Pari-Mutuel Wagering testified at the formal hearing which was consolidated with the rule challenge styled Daniel G. Hennessey, Fred G. Warren and Celestina M. Gangemi vs. Division, DOAH Case Nos. 99-5254RX, 00-2821RX and 00-3809RX.
Appeal For This Case Unless expressly waived, any party substantially affected by this final order may seek judicial review by filing an original Notice of Appeal with the Clerk of the Department of Business and Professional Regulation, and a copy of the notice, accompanied by the filing fees prescribed by law, with the clerk of the appropnate District Court of Appeal within thirty (30) days rendition of this order, in accordance with Rule 9.110, Fla. R. App. P., and section 120.68, Florida Statutes. CERTIFICATE OF SERVICE Thereby certify that this Notice has been provided by facsimile transmission to Cynthia S. Tunnicliff and Martha J Edenfield, Attorneys for Respondent, by U.S. Certified Mail at Post Office Box 10095, Tallahassee, Florida 32302-2095 and David S. Romanik, Attorney for Respondent, by U.S. Certified Mail to Post Office Box 310, Hallandale, Florida 33008-0310 this 4 day of, pk 2001. Mary Polomo, Division Clerk Copies furnished to: Bureau of Operations Licensing Section Bureau of Investigations Joseph M. Helton, Jr., Assistant General Counsel General Manager, Calder Chief Inspector, Calder Stewards, Calder Director of Security, Calder Racing Form, Calder
The Issue The issue for determination at hearing is whether Respondent committed the offenses set forth in the administrative complaint, and if so, what action should be taken.
Findings Of Fact Calder Race Course, Inc. (Calder) is a pari-mutuel facility, located in Dade County, Florida. Calder is authorized to conduct thoroughbred racing in the State of Florida. On or about August 15, 1994, the Director of Security (Director) at Calder commenced an investigation into the selling and buying of illegal drugs at Calder. The Director had received information of the alleged illegal activity from reliable, confidential informants who included Calder employees. The alleged drug dealing was occurring at a part of Calder described as the second floor alcove, directly outside the grandstand. The alleged illegal activity involved Calder employees, as well as patrons. As a result, hidden video cameras were installed to provide surveillance of the area where the alleged illegal activity was occurring. Using the video surveillance equipment, the area was monitored by Calder security continuously each day during racing hours - - commencing at the start of each racing day, approximately 12:30 p.m., and ending at the finish of the last race, approximately 5:30 p.m. on weekdays and 6:00 p.m. on weekends. The video surveillance spanned almost 30 days. The video surveillance revealed a behavioral pattern by the alleged drug dealers and buyers. The individuals involved in the alleged illegal activity would walk in the hidden camera view area and either (a) go behind the wall where they allegedly would make deals for the drugs and return in camera view with the alleged drug dealer putting money in his pocket, or (b) the individuals would make an exchange in camera view with the alleged drug dealer putting money into his pocket. William Naum (Respondent) was observed by video surveillance on two occasions. These observations occurred almost at the end of the surveillance period. Respondent is well known by the Director. Respondent is a regular and frequent patron of Calder. Also, during the investigation of the alleged drug activity, Respondent was under investigation by the Director for another alleged illegal act. On August 28, 1994, Respondent was observed by video surveillance with the alleged drug dealer. They went behind the wall and shortly thereafter, the alleged drug dealer returned alone and left the surveillance area. On or about September 9, 1994, Respondent was observed by video surveillance meeting with the alleged drug dealer and making an exchange of money for something that could not be seen. The Director has more than 30 years in law enforcement in which he spent many of those years engaging in surveillance in drug investigations, as well as making undercover drug purchases as an investigator for the Thoroughbred Racing Protective Bureau at race courses. Based upon his experience and the behavioral pattern exhibited on the surveillance cameras, the Director determined that Respondent had purchased drugs from the alleged drug dealer. Besides patrons, Calder employees and licensees were observed on the surveillance cameras exhibiting this same behavioral pattern. Because the investigation expanded beyond patrons, the Narcotics Unit of the Metro-Dade Police was requested to assist with the investigation after about two weeks into the surveillance. The Metro-Dade Narcotics Unit successfully made an undercover purchase of drugs from the alleged drug dealer. On September 10, 1994, the alleged drug dealer was brought into Calder's security office where the Director was present. The alleged drug dealer admitted to selling cocaine at Calder for the last two years. On September 11, 1994, Respondent was at Calder, as a patron. He was brought into the Calder security office and advised by Calder security that Calder no longer wanted his business, that he was being ejected and barred from Calder and that, if he returned, he would be subject to arrest for criminal trespass. This action by Calder is referred to as a "management exclusion." Respondent was not informed of the reason for his exclusion. Respondent was one of the first patrons to be brought in and notified of their exclusion and Calder security had more patrons who would be given the same management exclusion. Calder security was concerned that the other patrons, who were subject to the exclusion, would be deterred from coming to Calder if they discovered that Calder was excluding patrons for purchasing illegal drugs. All patrons who were determined to have purchased illegal drugs were treated the same way as Respondent by Calder and Calder Security.
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 excluding William Naum from all pari-mutuel facilities in Florida under terms and conditions it deems appropriate. RECOMMENDED this 22nd day of December, 1995, in Tallahassee, Leon County, Florida. ERROL H. POWELL, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of December, 1995.
The Issue The issue for determination is whether Respondent committed the offenses set forth in the Administrative Complaint and, if so, what action should be taken.
Findings Of Fact At all times material hereto, Sergio Ramon Garcia (Garcia) was licensed by the State of Florida as a life and variable annuity contracts agent, life agent, life and health agent, general lines agent, health insurance agent, and legal expense insurance agent, having been issued license number 266253905. On the evening of July 20, 1991, while leaving his insurance office in Dade County, Florida, Mr. Garcia was the victim of a violent crime. Two individuals with firearms attempted to rob Mr. Garcia. He was shot five times. As a result of his injuries, Mr. Garcia was in surgery for several hours, in intensive care for two weeks, and in the hospital for approximately two months. He was paralyzed from the waist down. Mr. Garcia received rehabilitation for a considerable amount of time. At first, there was no expectation that he was going to walk again. Mr. Garcia was confined to a wheelchair. Through physical therapy, he progressed from the wheelchair to a walker, to crutches, and to a cane. Now, Mr. Garcia is able to walk without any assistance. During his rehabilitation period, Mr. Garcia used a bicycle for therapy that he had purchased for his personal pleasure years before the shooting. His physical therapist had recommended using the bicycle to exercise his legs. Mr. Garcia rode the bicycle every morning and every evening. He became very sentimental toward the bicycle and referred to the bicycle as his “friend.” The bicycle had distinct features. It was specially modified to accommodate his therapy needs (a specially wide seat for his hip problems) and was white, including the handle bars. Mr. Garcia has undergone 12 operations and more are expected. He has screws in his hips, and the screws will have to be replaced through surgery. Mr. Garcia experiences pain daily and continues to take medication for pain. Furthermore, Mr. Garcia continues to attend physical therapy. After the shooting, Mr. Garcia’s then business partner purchased a handgun, a .22 caliber Derringer, and gave it to Mr. Garcia for protection. The handgun was a small weapon which would fit within the palm of Mr. Garcia's hand. Mr. Garcia obtained a license to carry a concealed weapon. Subsequently, Mr. Garcia and his wife decided to move to Broward County, Florida. Mr. Garcia did not receive the renewal for his concealed weapons license when they moved; notwithstanding, approximately three weeks prior to the incident, Mr. Garcia renewed his concealed weapons license. It is inferred and a finding is made that, at the time of the incident, Mr. Garcia had renewed his concealed weapons license, and the license was valid.2 In January 1996, Mr. Garcia’s bicycle was stolen. The theft was reported to the proper law enforcement agency which requested the bicycle's serial number; however, the Garcias were unable to provide the serial number to the law enforcement agency. On a cold morning on or about February 21, 1996, after driving his children to school, Mr. Garcia observed a male riding, what Mr. Garcia determined to be, his bicycle. He drove alongside the male and tried to get the male to stop, but to no avail. Finally, Mr. Garcia pulled his vehicle in front of the male and stopped, forcing the male to stop. The male got off the bicycle and reached into his jacket. Mr. Garcia had his handgun in the pocket of his pants. He believed that his concealed weapons license was valid.3 Believing that the male was reaching for a handgun, Mr. Garcia became fearful for his life. Mr. Garcia reached into his pocket and pulled out his own handgun. However, the handgun, having a hair-trigger, accidentally discharged while he was pulling it from his pocket. Mr. Garcia did not point the handgun at the male. The projectile from the handgun hit the ground. The male got back on the bicycle and rode away. Not being able to run after the male because of his physical condition, Mr. Garcia returned to his vehicle, placed the handgun under the seat of his vehicle, and drove after the male. Mr. Garcia saw the male talking with a traffic assistance officer and stopped. Mr. Garcia approached them, explained that the bicycle belonged to him and demanded the bicycle from the male. Mr. Garcia put the bicycle in his car and took the bicycle home. An investigation by the local law enforcement agency ensued. As part of the investigation, Mr. Garcia was requested to provide the serial number for the bicycle. He was unable to provide a serial number and had no documents showing a serial number. However, Mr. Garcia did provide photographs of his bicycle and a receipt, identifying the same type of bicycle. On or about February 21, 1996, an information was filed against Mr. Garcia in the Circuit Court of the Seventeenth Judicial Circuit, in and for Broward County, Florida, Case No. 96-5453CF. Mr. Garcia was charged with one count of aggravated assault with a firearm, which is a felony, and one count of carrying a concealed weapon, which is also a felony. On or about March 25, 1996, Mr. Garcia was arrested and charged with aggravated assault and carrying a concealed weapon. Mr. Garcia obtained counsel who strongly advised him to plead nolo contendere to the charges. His counsel advised him that, even though the prosecution’s case was very weak, a jury was unpredictable,4 and, therefore, an acquittal could not be guaranteed. Further, Mr. Garcia’s counsel advised him that, if he was convicted, he could be sentenced to a mandatory three-year prison sentence. In return for the plea of nolo contendere, the State Attorney's office waived the primary offense which carried a mandatory minimum three-year sentence. Mr. Garcia’s wife agreed with his counsel and recommended and encouraged her husband to plead nolo contendere to the charges. She did not want to face the possibility of her husband being convicted of the charges and going to prison. On or about July 22, 1996, Mr. Garcia entered a plea of nolo contendere to both felonies. The Circuit Judge withheld adjudication and sentenced Mr. Garcia to one year of community service and one year of probation for both felonies. Taking the initiative, Mr. Garcia voluntarily notified the Department of Insurance (Department) of the criminal charges against him, the nolo contendere plea, and the sentence imposed. At the hearing, neither the male who was riding the bicycle nor any alleged eye-witnesses testified. A finding is made that Mr. Garcia was in fear for his life and was defending himself when he pulled his handgun from the pocket of his pants. Since the incident on February 21, 1996, the bicycle has remained in Mr. Garcia’s possession. No claim for the bicycle has been made by the male who was riding it that day. It is inferred and a finding is made that Mr. Garcia is the owner of the bicycle. Mr. Garcia and his wife are partners in the insurance business. Mrs. Garcia is a licensed insurance agent by the Department. They have over 5,000 clients. Mr. Garcia and his wife employ over 30 people. Their workforce includes individuals who are in work release programs, and the Garcias attempt to assist them in getting their lives back together. The Vice President of the Dade County Board of Specialty Agencies testified as a character witness for Mr. Garcia. In the Vice President’s opinion, Mr. Garcia is, among other things, a very dedicated, conscientious, and responsible person. Mr. Garcia has been licensed since 1985. The Department has taken no prior disciplinary action against Mr. Garcia.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Insurance and Treasurer issue a final order suspending the license of Sergio Ramon Garcia for one month. DONE AND ENTERED this 15th day of September, 1997, in Tallahassee, Leon County, Florida. ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 15th day of September, 1997.
