St. Petersburg Kennel Club v. Department of Business and Professional Regulation, Div. of Pari-Mutuel Wagering

Decision Date02 September 1998
Docket NumberNos. 97-03877,PARI-MUTUEL,97-04139,s. 97-03877
Citation719 So.2d 1210
Parties23 Fla. L. Weekly D2046 ST. PETERSBURG KENNEL CLUB, Appellant, v. DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION, DIVISION OFWAGERING, Appellee.
CourtFlorida District Court of Appeals

Harold F.X. Purnell of Rutledge, Ecenia, Underwood, Purnell & Hoffman, P.A., Tallahassee, for Appellant.

Stacey M. Rose, Staff Attorney, and Lisa S. Nelson, Deputy General Counsel, Tallahassee, for Appellee.

PER CURIAM.

In this consolidated appeal, the appellant, St. Petersburg Kennel Club, (the Kennel Club), challenges two final orders. In appeal number 97-03877, the Kennel Club challenges the final order of the Division of Administrative Hearings, which denied the Kennel Club's petition for a determination that the definition of the game "poker," in Florida Administrative Code Rule 61D-11.026, is an invalid exercise of delegated legislature authority. In appeal number 97-04139, the Kennel Club challenges the final order of the Division of Pari-mutuel Wagering which denied its application for approval of three particular card games. We reverse both final orders.

The legislature in section 849.086, Florida Statutes (Supp.1996), authorized pari-mutuel facilities to operate cardrooms. This statute is known as the Cardroom Act. The definition portion of this statute states: " 'Authorized games' means only those games authorized by s. 849.085(2)(a) and which are played in a nonbanking manner." § 849.086(2)(a), Fla. Stat. (Supp.1996). Thus, the Cardroom Act does not set forth a definition for "authorized games" but merely refers one to another statute, namely section 849.085(2)(a). Section 849.085(2)(a) reads: " 'Penny-ante game' means a game or series of games of poker, pinochle, bridge, rummy, canasta, hearts, dominoes, or mah-jongg in which the winnings of any player in a single round, hand, or game do not exceed $10 in value." § 849.085(2)(a), Fla. Stat. (1995). Neither the Cardroom Act nor the statute to which it refers defines the game of poker. The Division of Pari-mutuel Wagering created a definition of poker and set it forth in the challenged rule, rule 61D-11.026. We agree with the Kennel Club's contention that the promulgation of this rule was an invalid exercise of delegated legislative authority.

In section 120.536, Florida Statutes (Supp.1996), the legislature amended the Administrative Procedures Act (APA) so that when adopting a rule an agency must now point to a specific law to be implemented. That is, an agency may not make a rule based solely on its general rulemaking authority, but must point to a specific law that is to be implemented. In this case the administrative law judge cited section 849.086(4)(a), Florida Statutes (Supp.1996), and section 550.0251(12), Florida Statutes (Supp.1996), as the specific laws to be implemented by the proposed rule. Section 849.086(4)(a) states that the Division of Pari-mutuel Wagering shall regulate the operations of cardrooms and is authorized to adopt rules, including, but not limited to: the issuance of cardroom and employee licenses for cardroom operations; operation of a cardroom; recordkeeping and reporting requirements; and the collection of all fees and taxes imposed by this section. § 849.086(4)(a), Fla. Stat. (Supp.1996). Section 550.0251(12) states that the Division shall have the authority to make rules relating to cardroom operations, to enforce and carry out the provisions of section 849.086, and to regulate the authorized cardroom activities in this state. § 550.0251(12), Fla. Stat. (Supp.1996). Neither of these laws provide the specific rule-making authority for rule 61D-11.026. See Department of Bus. & Prof'l Regulation v. Calder Race Course, Inc., 23 Fla. L. Weekly D1795 (Fla. 1st DCA July 29, 1988). Neither of these laws state, for example, that the Division shall have the authority to make rules which set forth the definition of poker.

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    • Court of Appeal of Florida (US)
    • September 13, 2001
    ...an agency rule that would have allowed warrantless searches at a parimutuel facility); St. Petersburg Kennel Club v. Dep't of Bus. and Prof'l. Regulation, 719 So.2d 1210, 1211 (Fla. 2d DCA 1998) (applying the 1996 amendments in invalidating rules defining poker because the enabling statute ......
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    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Northern District of Florida
    • November 9, 2016
    ...not adopt rules defining what is or is not a banked game within the meaning of § 849.086. See St. Petersburg Kennel Club v. Dep't of Bus. & Prof'l Regulation , 719 So.2d 1210 (Fla. 2d DCA 1998) ; see alsoDania Entertainment Center, LLC v. DBPR, Div. Pari–mutuel Wagering , Case No. 15–7010RP......
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    ...an agency rule that would have allowed warrantless searches at a pari-mutuel facility); St. Petersburg Kennel Club v. Dep't of Bus. and Prof'l. Regulation, 719 So. 2d 1210, 1211 (Fla. 2d DCA 1998) (applying the 1996 amendments in invalidating rules defining poker because the enabling statut......
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    • Court of Appeal of Florida (US)
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    ...a rule valid where the rule expanded and contravened the law implemented); St. Petersburg Kennel Club v. Dep't of Bus. & Prof'l Regulation, Div. of Pari-Mutuel Wagering , 719 So. 2d 1210 (Fla. 2d DCA 1998) (holding a rule defining "poker" exceeded the Division's rulemaking authority where t......
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