The Issue The central issue in this case is whether the Respondent is guilty of the violations alleged in the Emergency Order of Suspension; and, if so, what penalty should be imposed.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, the following findings of fact are made: At all times material to this matter, the Respondent, Robert L. Seamans, held alcoholic beverage license no. 23-00987, series 4-COP, for the licensed premises located at 11425 S.W. 40th Street, Miami, Dade County, Florida, known as the Lucky Lady. Respondent, age 64, has held alcoholic beverage licenses in the states of New York or Florida since 1963. Respondent has never been charged or reprimanded for a beverage law violation until these proceedings. At all times material to this case, the Respondent employed a barmaid at the Lucky Lady who was known as "Stella." Also present at the Lucky Lady during relevant time periods was a drifter known to the bar patrons as "Tom". In exchange for food and/or the use of the bar kitchen, Tom assisted the barmaids by carrying out trash, stocking the beer cooler, or filling the ice bins. Although Tom was not an employee at the Lucky Lady, he, like many of the regular patrons, had unrestricted use of the Lucky Lady's kitchen area. Sometime prior to April, 1990, a bar located near the Lucky Lady was closed by the Department following an investigation and a determination that controlled substances were being either sold or possessed on the licensed premises. Respondent was aware of the action taken to close the local bar and was further aware that undesirable persons from that bar might attempt to patronize the Lucky Lady. Respondent had considered joining the Department's Responsible Vendors Program but did not. Respondent's policy was to exclude any customer suspected of improper conduct whether related to drugs or other inappropriate activities. To effect that policy Respondent maintained a "barred" list which listed those individuals either by name or description who were not welcome at the Lucky Lady. Employees were instructed to request any person on the barred list to leave the facility. In the event such person refused, the police were to be summoned. On numerous occasions not described below, patrons of the Lucky Lady have observed Respondent escorting persons from the bar who were suspected of, or were known to have exhibited, improper conduct. Respondent relied on his wife, Tanya, to assist him to monitor the interior areas of the Lucky Lady. It was Mrs. Seamans' custom to remain in the licensed premises throughout the evening hours and to watch for any improper conduct. If she observed anything suspicious, she would either report the activity to her husband or to an employee for further investigation and/or action. Unfortunately, Mrs. Seamans sustained a broken hip on April 29, 1990, and was unable to supervise the licensed premises after that date. The Respondent did not obtain a replacement to perform Mrs. Seaman's monitoring function. During May, 1990, Vincent Weiner, a law enforcement investigator employed by the Department, conducted an undercover narcotics investigation of the Lucky Lady. To effect his purpose, Mr. Weiner assumed the name "Vinnie Capio" and began to patronize the licensed premises. On May 5, 1990, Mr. Weiner and a confidential informant went to the Lucky Lady and asked Stella if cocaine were available. Stella directed the two men to the restroom. Once there, they proceeded to complete the transaction with Tom based upon the price which had been negotiated with Stella ($25.00). On this occasion, in exchange for the $25.00, Mr. Weiner received a clear baggie containing a substance which was later analyzed and found to be cocaine. On May 8, 1990, Mr. Weiner returned to the Lucky Lady and again inquired if cocaine were available for purchase. On this date, Stella went to the kitchen and returned with a packet which was exchanged with Mr. Weiner across the bar counter for $25.00. This packet was later analyzed to be cocaine. At all times when Mr. Weiner was seated at the bar counter, other patrons were also present at the counter during the course of the transactions. Mr. Weiner attempted to make a second purchase of cocaine on May 8, 1990. Similar to the prior transaction of that date, Stella went to the kitchen but returned with a written message for Mr. Weiner which she handed to him (instead of another packet). Tide message stated, "he's OUT he got rid of all of them already." Stella did not identify the "he" noted in the message. On May 15, 1990, Mr. Weiner purchased two packets of cocaine at the Lucky Lady. During the first transaction, Stella advised Mr. Weiner to enter the kitchen where he met Tom. Tom then took a packet from an envelope on the kitchen shelf and exchanged it for $25.00. Later in the evening, Mr. Weiner gave $25.00 to Stella while Tom removed another packet from the envelope and handed it to the investigator. This second exchange also took place in the Lucky Lady kitchen. Both of the packets purchased on this date were later analyzed and found to be cocaine. On May 18, 1990, the investigator returned to the Lucky Lady and purchased two packets from Stella and Tom. Again, the exchange took place within the kitchen and the amount for these transactions totalled $50.00. The substance obtained on this date was later analyzed and found to be cocaine. On May 22, 1990, Mr. Weiner was seated at the bar when Stella asked him if he would be needing anything that evening. The investigator placed $25.00 on the bar while Stella went to her purse (located behind the bar counter) and retrieved a packet which she then exchanged for the money. This transaction took place in front of the other patrons seated at the bar. Later in the evening, in the same manner as described above, Mr. Weiner purchased a second packet from Stella. Both of the packets obtained on this date were later analyzed and found to be cocaine. On May 29, 1990, Stella was again behind the bar at the Lucky Lady. On this date, Mr. Weiner negotiated for one packet (which she obtained from her purse located within the bar area) in exchange for $25.00. This packet was later analyzed and found to be cocaine. The Respondent was present within the premises at the Lucky Lady during at least one of the transactions described above. There is no evidence that Respondent was personally involved in the exchanges nor that he was aware of the sales. The Respondent does not dispute that the substance purchased by Mr. Weiner on each of the occasions described above was cocaine. During the course of the investigation Mr. Weiner observed video poker games located within the licensed premises. The games were coin operated and required the player to choose a hand for five card draw poker. By discarding any or all of his original hand, the player attempts to, by the chance of the game, receive a winning hand. The game awards points for Winning hands and subtracts points for losing hands. If a player accrues more points than he paid for, he finishes ahead of the machine. On May 22, 1990, Mr. Weiner finished playing the video poker game with a total of 36 points. That total was 16 more than he had originally purchased. Mr. Weiner consulted Stella regarding the results and she wrote his name and the point total on a piece of paper which she then placed near the cash register. On May 23, 1990, Mr. Weiner returned to the Lucky Lady and requested his "mail." He intended to obtain his winnings related to the video game he had played the day before. He received $9.00 which he believed was the amount he was due for accruing the 36 points. No other explanation as to why Mr. Weiner would receive $9.00 from the bar (except in connection with video game results) was suggested by either party. On May 31, 1990, an Emergency Order of Suspension was executed by the Director of the Division of Alcoholic Beverages and Tobacco. That order was served on the Respondent on June 1, 1990, and the licensed premises have been closed since that time. On June 1, 1990, an inspection of the Lucky Lady premises was conducted by agents of the Department. The Respondent had keys to the video poker games described in Paragraphs 16 and 17.
Recommendation Based on the foregoing, it is recommended that the Department of Business Regulation, Division of Alcoholic Beverages and Tobacco enter a final order revoking the Respondent's alcoholic beverage license no. 23-00987, series 4-COP, for the premises located at 11425 S.W. 40th Street, Miami, Dade County, Florida. RECOMMENDED this 17th day of July, 1990, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of July, 1990. APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-3447 RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE DEPARTMENT: Paragraphs 1 through 3 are accepted. To the extent the drug transactions are outlined in findings paragraphs 7 through 13, the Department's paragraphs 4 through 12 are accepted; otherwise rejected as irrelevant. To the extent the video poker games are addressed in findings paragraphs 16 and 17, the Department's paragraphs 13-15 are accepted; otherwise rejected as irrelevant. Paragraphs 16 through 18 are accepted. But see also finding paragraphs 3 and 4. Except as addressed in finding paragraph 2, paragraph 19 is rejected as irrelevant. Paragraph 20 is accepted. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE RESPONDENT: Paragraphs 1 through 3 are accepted. Paragraph 4 is rejected as irrelevant, comment or argument not constituting a factual finding. Paragraph 5 is rejected as recitation of testimony. The video poker games were games of chance in that the machine, of its own design (not a player's choosing) dictated the hand received by the player. Paragraphs 6 through 9 are accepted. It is accepted that Respondent did not personally engage in the illegal sales recounted in the order; otherwise, paragraph 10 is rejected a irrelevant, argument or comment. Paragraphs 11 and 12 are accepted. COPIES FURNISHED: Henry A. Amoon Continental National Bank Building Suite 408 400 Southwest 107th Avenue Miami, Florida 33174 John B. Fretwell Assistant General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007 Stephen R. MacNamara Secretary Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000 Leonard Ivey, Director Division of Alcoholic Beverages and Tobacco Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1000 Joseph A. Sole General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1000
The Issue The issues in this case are whether Respondent unlawfully conducted gambling operations at its licensed business establishment, and, if so, what penalty is warranted.
Findings Of Fact The Department is the state agency responsible for, inter alia, licensing and monitoring businesses licensed under the Florida Beverage and Tobacco laws. Department headquarters are in Tallahassee, Florida. Respondent is a duly-licensed business monitored by the Department. The business, known as Tubby's, is a small bar or pub that serves alcohol pursuant to its license. The business has five video games with names such as Stone Age, Cherry Master, and Haunted House. The games allow customers to accumulate points as they play. The points are then registered on a written slip of paper printed by the video game after each period of play. There are a number of video surveillance cameras in Tubby's which are used to monitor the hallway, bathroom, and bartenders. The bar has experienced trouble in the past with drug deals and installed the cameras to prevent such activities from re-occurring. One of the video cameras, the one pointed toward the video game area, was in fact not actually a working camera according to Tubby's representative.3 On October 19, 2007, two agents employed by the Department conducted an investigation of Tubby's to ascertain whether illegal gambling was going on in the establishment. Special Agent Michael Chandler sat at one of the video machines and played approximately $5.00 worth of currency. Upon completion, he had accumulated 4 points as evidenced by a game slip which printed from the machine. The game slip had the following information printed on it: "TUBBY'S GAME 1; NO CASH VALUE; 1/20/07 01:17:37 1404."4 Chandler gave the slip to the bartender, and it was placed on a red diary or log kept behind the bar. When the slip was later recovered by Chandler, his undercover name (Mike Boone) had been written on the slip. Also written across the top of the slip were the words, "Not Paid. Same guy as last night." Special Agent Robert Baggett also played one of the games. He played $30.00 worth of coins and won 100 points as indicated on his game slips.5 Baggett says another patron told him that he could get actual money for the slips, but that testimony was not confirmed by non-hearsay evidence. Baggett gave his slips to the bartender and asked what he could receive for them. This exchange between Baggett and his counsel at final hearing addressed what happened next: Q: And did the bartender do anything with the game slips? A: He asked me my name, and I gave him my alias. And he advised me that the scores will be tabulated at the end of the week, and that if I got the highest score my name would be placed on the electronic scoreboard that hung next to the bar area. Q: To your understanding, do the game slips have any value? A: Based upon my previous education, training and experience, these points are redeemable for monetary items. Because we have conducted several investigations in the past where we actually were paid out in the form of bar tabs or actual money. There was no mention by the bartender of cash payments being available for the game slips that Baggett acquired at Tubby's. In fact, in contrast to what Baggett had experienced in other investigations, this establishment specifically applied earned points to a non-monetary function, i.e., listing the winners' names on a game board. Based on their determination that illegal gambling was occurring, Chandler and Baggett seized a number of lottery tickets, a bank bag filled with cash, and the game slips from the log book. The cash was primarily twenty-dollar bills wrapped in bundles of $1,000 each for a total of $3,049.00. Each night, the Automatic Teller Machine (ATM) was replenished with cash. The register report produced at final hearing by Respondent clearly indicates a daily deposit of cash into the ATM. Goulet's testimony that the cash in the bank bag was used to replenish the ATM on site at Tubby's is credible. The game slips from customers were shredded or otherwise disposed of at the end of each week because there was no reason to keep them. This explanation is credible. The Department’s concern and position that the slips should be maintained in case some customer questioned his or her point total is speculative and not supported by the facts. Also confiscated from the establishment by Chandler and Baggett was a hand-written list of professional football teams. The list contained the first names or nicknames of 13 individuals, along with a statement of each player's record from the prior week. This sheet was obviously representative of some sort of football pool, but there is no evidence whatsoever that it was used for gambling purposes or involved the payment or exchange of money. The video camera in the gaming area of Tubby's was, as previously discussed, not a working camera. The game area was purposely set up by Tubby's management to look like a casino gambling area. This was meant to enhance the enjoyment of playing the video machines. Goulet testified that Tubby's is an alternative lifestyle bar and that its clientele is fairly regular, i.e., they see the same people over and over. Due to its location off the main thoroughfares, there are not a lot of folks who just drop in to the bar.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Business and Professional Regulation finding that Respondent, Rick's of South Florida, Inc., d/b/a Tubby's, is not guilty of conducting illegal gambling at its business site. Based upon the foregoing recommendation, it is further RECOMMENDED that Exhibits 5, 8, and 10 be returned to Respondent. DONE AND ENTERED this 29th day of May, 2008, in Tallahassee, Leon County, Florida. R. BRUCE MCKIBBEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of May, 2008.
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 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.
The Issue Whether the proposed repeal of Rule 61D-11.027, Florida Administrative Code, is an invalid exercise of delegated legislative authority because the repeal has the effect of creating or implementing a new rule or policy.
Findings Of Fact The Florida Legislature enacted Section 849.086, Florida Statutes, in 1996. The law authorized the establishment of “cardrooms” at licensed pari-mutuel facilities and dictated the parameters by which games may be conducted at such facilities. In essence, the cardrooms conduct games wherein the players compete against one another. The participants do not wager against “the house.” Instead, the house, that is, the pari-mutuel facility, conducts the games in a non-banking manner. This means the house does not have a financial interest in the outcome of the game(s). For purposes of this case, it is determined that the players who win share fractions of the “pot” created by the entry fees paid to participate in the game(s). The Petitioners in this cause are licensed facilities that have operated cardrooms. Each Petitioner holds a pari- mutuel wagering permit and a valid cardroom license. The Respondent is the state agency charged with the responsibility of administering Section 849.086, Florida Statutes (2005). Section 849.086, Florida Statutes, was amended in 2003 by Section 4, Chapter 2003-295, Laws of Florida. The 2003 amendment imposed a $2.00 bet limitation, with a maximum of three raises per round of betting. This change to the statute required the Respondent to revisit the rules governing cardrooms and, more specifically, the concept of poker “tournaments” being conducted at pari-mutuel facilities. To that end, and after extensive rule-making proceedings, the Respondent adopted rules that were incorporated in Florida Administrative Code Chapter 61D-11. The Respondent intended for the rules to address concerns regarding the $2.00 bet and raise limitations as well as how “re-buys” might affect or potentially allow a violation of such provisions. A “re-buy” describes when a card player is allowed to purchase more chips from the house during a game(s). Florida Administrative Code Rule 61D-11.027 was adopted on May 9, 2004. It was then challenged by pari-mutuel facilities who alleged the rule encompassed more than the statute authorized. Such challenge (DOAH Case No. 04-2950RX), was granted. The Final Order found that the rule (Florida Administrative Code Rule 61D-11.027(2)(a)) exceeded the Agency’s grant of rulemaking authority, modified the specific law implemented, and was arbitrary. Accordingly, the Final Order (DOAH Case No. 04-2950RX) determined that the rule violated Subsections 120.52(8)(b), (c), and (e), Florida Statutes. The Florida First District Court of Appeal affirmed the Final Order by a Per Curiam decision issued on October 28, 2005. Thereafter, the Respondent proceeded with the emergency repeal of the tournament rule in its entirety and issued an advisory letter to all cardroom license holders. The Respondent represented that it cannot reconcile the holding of the court with the explicit language of Section 849.086(8), Florida Statutes (2005). At the hearing, the Respondent represented that additional rulemaking will be necessary. The Respondent does not dispute that tournaments are permissible under the statute. Moreover, the parties agree that prior to the rule, repeal tournaments were conducted using tokens or chips that did not have value. Tournaments were played at licensed cardroom facilities during the period commencing in May 2004 through November 9, 2005. During that time (the period the rule was in effect) counties, cities, and the state received income from the monies remitted by the cardroom facilities. Additionally, the cardrooms employed persons to work the facilities to conduct the various games. After the repeal of the rule, revenues from the cardrooms decreased substantially. Similarly, the cardrooms did not need the number of employees as games were not being conducted. Tournaments at the St. Petersburg Kennel Club have not been conducted since January 17, 2006. From November 2005 through January 17, 2006, the tournaments at the St. Petersburg Kennel Club were conducted using chips or tokens that had “fractional value.” The “fraction” did not correspond to the entry fee charged for the tournament. It is not known whether or not re-buys during the tournaments were allowed. The Respondent issued a Memorandum to Pari-Mutuel General Managers at Cardroom Facilities and Cardroom Managers on January 12, 2006, that provided in part: In light of the recent ruling by the First District Court of Appeals, the Division’s administrative rules regarding tournaments have been repealed on an emergency basis, and are scheduled to be repealed permanently. The Division distributed a memorandum to all cardroom operators regarding Clarification of Cardroom Tournament Rules and Jackpots on November 9, 2005. The Division has also expressed on numerous occasions a serious concern of cardroom operators issuing chips in a fashion that does not represent an even value exchange for money in an attempt to circumvent the $2 bet and three raise limitation outlined in Chapter 849.086(8)(b), Florida Statutes. [Italics in original.] The November 9, 2005, Memorandum referred to in paragraph 14 above provided, in pertinent part: This memorandum is intended to clarify issues regarding the recent ruling by the First District Court of Appeals which affirmed an earlier ruling of the Division of Administrative Hearings (DOAH). The DOAH ruling found that various cardroom rules, which were challenged by Dania Jai Alai and Calder Race Course, are invalid. These rules addressed tournaments, jackpots, the Division’s approval of games, and gifts that enable play in an authorized game. As a result of the ruling, today the Division filed emergency rules to ensure that tournaments are played in compliance with the bet limitation of Section 849.086(8)(b), Florida Statutes. * * * The Final Order that was affirmed by the First District Court of Appeals invalidated the Division’s rules regarding entry fees, re-buys and single table tournaments. The judge held that tournament play is authorized by the cardroom statute. Therefore, cardrooms may set their own entry fees and allow re-buys in tournaments and hold single table tournaments. * * * Unauthorized activity, such as conducting wagering on tournaments that does not conform with the wagering restrictions found in Section 849.086(8)(b), Florida Statutes, or offering of jackpots or gifts that do not comply with the requirements that cardrooms be operated in strict conformity with the statute as required by Section 849.086(3), Florida Statutes, may result in disciplinary action. The memorandums identified above did not change or modify the Respondent’s position regarding whether tournaments are legal or permitted by the statute. To the contrary, the memorandums merely advised the cardroom facilities that they would be held to the statutory standard regarding wagering and that jackpots and gifts would be prohibited. Prior to the appeal of the rule, the Respondent routinely approved tournaments that were based upon the following scheme: A participant paid a $32 buy-in and paid the house $13 for the fee to conduct the tournament. Then the participant received a number of no-value chips that were used to play a multiple number of games of poker. At the end of the designated time, number of games, or whenever the designated end occurred (on the same day of play), winners were announced based upon the number of chips they held. Participants were “ranked” and awarded cash prizes from the pot of entry fees. The $32 entry fee was a mathematical calculation thought to assure that no participant would violate the statute’s bet and raise limitations. Whether or not the “all in” concept violated the statute was not considered as the chips were deemed to have no value in and of themselves. This “no value” chip was a fiction that the Respondent supported as, in theory, the $32 player buy-in comported with a mathematical calculation that was within the statutory guideline. The payouts were determined based upon the number of participants and were set by percentage with the first place person receiving the largest payout. Additionally, participants under the approved scheme were not allowed re-buys. That assured that all participants started with the same number of chips and had the same “betting” potential. Finally, winners were not paid or could not receive prizes outside the “pot” created by the entry fees. A nominal gift (such as a T-shirt) was not considered a violation. Prizes such as giant television sets or vacations were not acceptable. All winnings were to be paid from the buy-in fees and all buy-in fees were to be returned to the players in winnings.
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 issues in these cases are whether the following rules promulgated by the Respondent, the Department of Business Regulation [now the Department of Business and Professional Regulation], Division of Pari-mutuel Wagering, are valid exercises of delegated legislative authority: F.A.C. Rules 61D-1.002(18) [formerly 7E-16.002(18)] and 61D-1.006 [formerly 7E-16.006]; and emergency rules 7ERR92-2(18) and 7EER92-6.
Findings Of Fact On or about September 30, 1991, the Petitioner, John R. Witmer, applied to the Respondent, the Department of Business Regulation (now the the Department of Business and Professional Regulation), Division of Pari-mutuel Wagering (the Division), for a three-year occupational license as a veterinarian. The license was issued with a scheduled expiration in 1994. In October, 1993, the Division filed an Administrative Complaint alleging that the Petitioner violated emergency rule 7EER92-2(18) and F.A.C. Rule 61D-1.002(18) (formerly codified as F.A.C. Rule 7E-16.002(18)) on November 11, 1992, and April 2, 1993. The charges remain pending and have been referred to the Division of Administrative Hearings, where they have been given DOAH Case No. 93-6638. On or about June 18, 1992, the Division released the legal opinion of its General Counsel that, if certain provisions of the statutes governing pari- mutuel wagering were allowed to sunset on July 1, 1992, the Division legally would be unable to regulate pari-mutuel wagering adequately, and pari-mutuel wagering would become illegal in Florida. In response to the legal opinion, several tracks and jai alai frontons filed suit in circuit court seeking declaratory and injunctive relief. On or about June 30, 1992, a temporary injunction was issued in the court case requiring the parties to maintain the status quo in effect on June 30, 1992, until further order. A final hearing in the court case was held on August 10, 1992. The court's Final Order held that the statutes that remained in effect after July 1, 1992, were "legally sufficient and not in violation of Article X, Section 7, of the Florida Constitution (1968) [a prohibition against lotteries not sanctioned by law]." The court dissolved the temporary injunction effective August 25, 1992. After the court decision, notwithstanding the earlier legal opinion issued by its General Counsel, the Division determined that it had the necessary statutory authority to promulgate emergency rules to implement what remained of the pari-mutuel wagering statutes after July 1, 1992. Approximately $1.7 billion in cash was being wagered annually. Taxes collected on the wagers amounted to approximately $105 million a year. The possibilities for cheating and stealing to obtain a piece of the action illegally are endless, requiring effective regulation and constant vigilance. It is not unusual, for example, for cheaters to attempt to drug race animals illegally. As a result, some 85,000 urine and blood samples are taken from race animals annually. It was determined that, under the remnants of the statutes that remained after July 1, 1992, there were three areas vital to the public's welfare for which sanctions or rulemaking, or both, were necessary: (1) regulation of the pari-mutuel wagering pool; (2) regulation relative to the collection of taxes; and (3) regulation of the administration of medicines and drugs to racing animals. Fifty-four emergency rules, designated 7EER92-1 through 7EER92-54, were promulgated on or about August 24, 1992. (These compare to the 340 rules previously promulgated under the authority of, and to implement, the entirety of Chapter 550, Fla. Stat. (1991), in effect before July 1, 1992.) In addition, the Division requested that the tracks and frontons promulgate "in-house" rules in an attempt to maintain, as a practical matter, the status quo as of June 30, 1992, to the extent possible. On or about November 22, 1992, the emergency rules were replaced by permanent rules, designated F.A.C. Rule Chapter 7E-16, and F.A.C. Rule Chapter 7E-4 was repealed. On or about December 16, 1992, the Legislature enacted Chapter 92-348, Laws of Florida (1992), a new comprehensive statute governing dog and horse racing pari-mutuel wagering. It replaced the prior law. The final bill analysis and economic impact statement produced by the House of Representatives Committee on Regulated Industries referred to Chapter 92-348 as a "revision" of the law on the subject. The Division suggested to the Senate Commerce Committee that an earlier Senate version of the bill contain a retroactive "savings clause" to specify that the Division would have jurisdiction to prosecute disciplinary proceedings against occupational licensees that were pending on July 1, 1992, under the Division's emergency rules and under the provisions of what would become Chapter 92-348. No such provision was included in Chapter 92-348. On or about December 17, 1992, the Division transmitted to the Department of State, Bureau of Administrative Code, as "technical changes" under F.A.C. Rule 1S-1.002(9), "corrections" to the statutory authority for, and law implemented by, F.A.C. Rule Chapter 7E-16. The "corrections" substituted appropriate provisions from Chapter 92-348. The Division interprets F.A.C. Rule 1S-1.002(9) to apply to changes in the statutory authority for, and law implemented by, rules. F.A.C. Rule Chapter 7E-16 later was redesignated as F.A.C. Rule Chapter 61D-1. Between July 1 and December 16, 1992, the Division issued some 11,000 occupational licenses and denied some 22 applications. During this time period, the Division collected some $400,000 in occupational license fees. The fees were part of the more than $800,000 collected in the fiscal year ending June 30, 1993. During the period from July 1 to December 16, 1992, the Division dismissed more than 80 pending disciplinary matters out of concern for whether the Division still had authority to impose sanctions for the violations in question. In addition, during that time period, out of the same concerns, the Division declined to prosecute more than 260 other cases in which track judges or stewards had found violations.
