Florida/Georgia Personal Injury & Workers Compensation

...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....

...: 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....

...However, it authorizes the Division to enact alternative rules of procedure for the holding of such hearings. This is also consistent with section 550.02(3)(b), Florida Statutes (1991), which was repealed by the 1991 Legislature and reenacted in 1992 as section 550.0251(5)....

...The Third District Court of Appeal distinguished United Yacht Brokers [37] and its progeny because those cases involved contracts that were voidable, not void. See id. at 1160. This Court has previously concluded that Gulfstream's exclusive dissemination agreements are void because they violate Florida law. Indeed under Section 550.0251(10), the Division had the authority to fine Gulfstream up to a $1,000 per violation....

...ere intended to regulate pari-mutuel wagering under chapter 550, Florida Statutes. The order held the proposed rules invalid exercises of delegated legislative authority. We affirm, *101 because the rule at issue in this appeal was not authorized by section 550.0251, Florida Statutes, under the 1996 amendments to sections 120.52(8) and 120.536(1), Florida Statutes....

...The challengers, which hold permits and licenses to operate pari-mutuel facilities and conduct pari-mutuel wagering, filed a joint petition contesting numerous proposed rules, including Florida Administrative Code Rule 61D-2.002. [1] The enabling authority cited in the rule is sections 550.0251(3), specifically, and 550.0251, generally....

...ks to implement, rather than on whether it is reasonably related to the general purpose or legislative intent behind the enabling statute. It continues that the agency has a grant of general rulemaking authority and a specific law to be implemented, section 550.0251, which delegates to the agency the power to investigate and search....

...In applying the above test to the proposed rule at bar, we have no difficulty in concluding that rule 61D-2.002, authorizing searches of persons and places within a permitted pari-mutuel wagering facility, is an invalid exercise of delegated legislative authority. As stated, the rule refers to section 550.0251(3), particularly, and section 550.0251, generally, as the statutes which the proposed rule implements. It is clear, however, that the statutory provisions fail to convey the requisite power to the agency to conduct searches. Subsection 550.0251(3) merely empowers the Division to "adopt reasonable rules for the control, supervision, and direction of all applicants, permittees, and licensees and for the holding, conducting, and operating of all racetracks, race meets, and rac...

...A specific law to be implemented was also required, and nothing in this subsection identifies the power that the rule attempts to implement, i.e., to search. If the rule is to pass the test demanded by sections 120.52(8) and 120.536(1), it must do so through the powers delegated generally to the Division under section 550.0251....

...sonable dispatch and with a reasonable, good faith belief that it could lead to an administrative, civil, or criminal action by the division or another administrative or law enforcement agency.... (Emphasis added.) The only identifiable authority in section 550.0251 that could conceivably be said to empower the Division with the right to conduct warrantless searches is found in subsection (9), relating to the Division's power to carry out "investigations." Undisputably an investigation can be conducted in many ways other than by a search....

...Nevertheless, we do not believe the legislature would so cavalierly disregard the warrant requirement of the Fourth Amendment by delegating to the Division, in the most general and, indeed, vague terms, the power to conduct searches, as the Division has contended. [3] We consider, rather, that section 550.0251(9)'s terms must be strictly construed, because the power given to the Division to investigate alleged violations of chapter 550, which could lead to the institution of administrative, civil or criminal actions, should be deemed penal in its effect. It is well established that penal statutes and highly regulatory laws are subject to strict construction and may not be extended by interpretation. See Ex parte Knight, 52 Fla. 144, 41 So. 786 (1906). A restrictive interpretation of section 550.0251 is also supported by pertinent provisions of the Administrative Procedure Act, and the analysis employed in St....

...ative authority [only] if it regulates *105 a matter directly within the class of powers and duties identified in the statute to be implemented." Id. at 80 (emphasis added). Obviously, there is nothing in the class of powers and duties identified in section 550.0251 that delegates to the Division the right to search persons or places within pari-mutuel wagering facilities, or any provision in the statute deeming a licensee of same to have waived the protections of the Fourth Amendment by consenting to such searches....

regulating pari-mutuel wagering in Florida, see § 550.0251, Fla. Stat. (2012) (providing that the Division

...Thus, we affirm that portion of the ALJ’s order. However, we decline to adopt the ALJ’s conclusion that the Division lacked the authority either to promulgate or to repeal rules pertaining to designated player games. The ALJ found that neither section 550.0251(12) nor section 849.086(4), Florida Statutes, which provide the Division with rulemaking authority, authorize the Division to “further define, prohibit, or limit activities authorized by statute,” including designated player games. The order reasoned that the Division’s “effort to restrict gameplay by the repeal of the rules, and by so doing to establish what is an ‘authorized game,’ is beyond the authority conferred under sections 550.0251(12) and 849.086(4).” Thus, the ALJ concluded that the repeal exceeded the Division’s scope of rulemaking authority, and enlarged, modified, or contravened the provisions of law implemented. The ALJ relied on St....

...2d DCA 1998), in which the Second District held a rule defining “poker” in the context of sections 849.085 and 849.086 exceeded the Division’s rulemaking authority. The court concluded that neither section 849.086 nor section 12 550.0251(12) “state ....

...rate instances of impermissible drugs found in the post-race urine specimens of horses which appellants trained and entered in races at three separate Florida pari-mutuel wagering facilities. The authorizing statutes identified in rule 61D-6.002 are section 550.0251(3), Florida Statutes, and sections 550.2415(2) and (13), Florida Statutes. Section 550.0251(3) mandates that the Division of Pari-Mutuel Wagering of the Department of Business and Professional Regulation "shall adopt reasonable rules for the control, supervision, and direction of all ......

...s "responsible pursuant to rule" for the condition of the horse he enters to race. As such, rule 61D-6.002(1), Florida Administrative Code, does not exceed the grant of rulemaking authority given to the department by the legislature through sections 550.0251(3) and sections 550.2415(2) and (13)....

...However, it authorizes the Division to enact alternative rules of procedure for the holding of such hearings. This is also consistent with section 550.02(3)(b), Florida Statutes (1991), which was repealed by the 1991 Legislature and reenacted in 1992 as section 550.0251(5)....

...The ALJ rejected their argument and concluded that the rule falls within the Commission’s statutory authority to regulate cardroom operations. We affirm that determination. 2 As the source of its authority to issue the rule, the Commission points to sections 550.0251(12) and 849.086, Florida Statutes (2022). Section 550.0251(12) provides: “The commission shall have full authority and power to make, adopt, amend, or repeal rules relating to cardroom operations, to enforce and to carry out the provisions of s. 849.086, and to regulate the authorized cardroom activities in the state.” § 550.0251(12)....

...on of cardrooms under this section,” and section 849.086(4)(a) vests it with the specific power to adopt rules relating to “the operation of a cardroom.” This duty and power are appropriate objects for exercise of the rulemaking authority that section 550.0251(12) confers on the Commission. You needn’t take our word for it. As set forth above, section 550.0251(12) itself states that section 849.086 is a provision of law that the Commission will implement, and in doing so, it does not distinguish among the latter’s various subsections. § 550.0251(12) (“The commission shall have full authority and power to make, adopt, amend, or repeal rules relating to cardroom operations, to enforce and to carry out the provisions of s. 849.086, and to regulate the authorized cardroom activities in the state.” (emphasis added)). That legislative language matters. Because we deal in a domain that belongs to the Legislature, we should take at face value what section 550.0251(12) tells us about the status of section 849.086(4) and 849.086(4)(a). “Rulemaking is a legislative function, and as such, it is within the exclusive authority of the Legislature under the separation of powers provision of the Florida Constitution.” St....

...Where, as here, a statute establishes that a particular provision of law is subject to an agency’s rulemaking authority, we § 120.52(8), Fla. Stat. (2022). 4 should credit that legislative choice in our interpretation and application of the APA. If the language of section 550.0251(12) were not enough, precedent confirms that section 849.086(4) and 849.086(4)(a) impose a duty and a power that the Commission’s rules may implement....

...taxes, in proportion to the sums they have wagered individually and with regard to the odds assigned to particular outcomes.” § 550.002, Fla. Stat. (2013). The Division is the state agency responsible for regulating all pari-mutuel wagering in Florida. See § 550.0251(3), Fla....

...3d 304, 307 (Fla. 3d DCA 2013) (quoting Fla. Hosp. v. Agency for Health Care Admin., 823 So. 2d 844, 848 (Fla. 1st DCA 2002)). “[T]he Division is the state agency that is responsible for regulating pari-mutuel wagering in Florida,” id. at 307 (citing § 550.0251, Fla....

...Beverly-Enters.-Fla., Inc., 898 So. 2d 1, 7 (Fla. 2004)).4 4 If more than one qualified applicant seeks the issuance of a newly-created summer jai alai permit during the same year, rule 61D-4.002 of the Florida Administrative Code, promulgated by the Division pursuant to section 550.0251, Florida Statutes, should govern the Division’s determination of which competing applicant should receive the permit....