Florida/Georgia Personal Injury & Workers Compensation

...Florida law distinguishes between nonbanked (Class II) card games and banked (Class III) card games. [9] A "banking game" is one "in which the house is a participant in the game, taking on players, paying winners, and collecting from losers or in which the cardroom establishes a bank against which participants play." § 849.086(2)(b); see § 849.086(1), Fla. Stat. (deeming banked games to be "casino gaming"). Florida law authorizes cardrooms at pari-mutuel facilities for games of "poker or dominoes," but only if they are played "in a nonbanking manner." § 849.086(2), Fla. Stat.; see § 849.086(1)-(3). Florida law prohibits banked card games, however. See § 849.086(12)(a), (15)(a)....

...ature 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....

...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....

...3d DCA 1997), as authority for upholding the rule in the instant appeal. PPI, Inc. held that the grants of authority in the statutes in that case supported the rule requiring surveillance devices in cardrooms. The specific *1212 law implemented in that instance was the provision in section 849.086(4)(b), which gives the Division of Pari-mutuel Wagering the authority to conduct investigations and monitor the operation of cardrooms and the playing of authorized games therein....

...(2018) (requiring “[a]s a condition of licensure” that slot machine operators shall “[c]onduct no fewer than a full schedule of live racing or games as defined in s. 550.002(11)”). Similarly, the link between cardroom operations and dog racing is a creature of statute, not the Florida Constitution. § 849.086(5)(a), Fla....

...[1] Section 849.085(2)(a), Florida Statutes (1995), defines a "penny-ante game" as "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." Section 849.086(8)(b), Florida Statutes (Supp....

...County Approval of Cardrooms We affirm the administrative law judge's ruling that the Division does not have the authority to require that county commissions, when approving the establishment of cardrooms in pari-mutuel facilities, voice that approval by passage of an ordinance rather than a resolution. [2] Section 849.086(16), Florida Statutes (Supp.1996), provides: The Division of Pari-Mutuel Wagering shall not issue any license under this section except upon proof in such form as the division may prescribe that a majority of the county commissioners...

...lication forms. [3] Chapter 849, Florida Statutes, requires the Division to exercise strict control over all cardroom operations; the application and screening procedures for permit holders and cardroom employees are essential to that control. See §§ 849.086(4), 550.0251(12) and (13), and 550.105(3)-(7), and (9), Fla....

...rack employees, to seek "any information [it] determines is necessary to establish the identity of the applicant or to establish that the applicant is of good moral character."). IV. Pot Limits The administrative law judge erroneously concluded that section 849.086(8)(b), Florida Statutes (Supp.1996), does not impose a wagering pot limitation of $10.00, and that the definition of "rake" found in section 849.086(2)(k) allows more than $10.00 to be wagered in an authorized game....

...eillance devices to oversee cardroom operations. [5] Where an agency is granted rulemaking authority, it is granted wide discretion in exercising that authority. Department of Professional Regulation v. Durrani, 455 So.2d 515 (Fla. 1st DCA 1984). In section 849.086(4), the legislature gave the Division the authority to adopt rules regarding the operation of cardrooms; to monitor the operation of those cardrooms; and to ensure the existence of, and compliance with, internal controls and the collection of taxes and fees....

...ips. If the designated player’s hand is better than the player’s hand, then the designated player collects the 1 We specifically decline to address the legality of the existing rules or whether the repeal of those rules would contravene section 849.086, Florida Statutes. 3  player’s wager....

...ainst offering a “banking game,” which is “a game in which the house is a participant in the game, taking on players, paying winners, and collecting from losers or in which the cardroom establishes a bank against which participants play.” § 849.086(2)(b), Fla. Stat. Ultimately, the industry suggested a version of a rule that stated the designated player cannot be required to cover all of the potential wagers that could be made by the other players....

...The Division also proposed adding a new rule that would state, “Player banked games, established by the house, are prohibited.” At a public hearing in December 2015, Division director Jonathan Zachem explained the purpose of the proposed changes was to conform the rules with section 849.086, which he believed “does not allow designated player games.” After the hearing, the Division began instructing its employees not to approve internal controls for designated player games because, as one Division...

...They estimated that the prohibition on designated player games would cost them more than $87,000,000 over a 5-year period. The LCRA suggested that the increased regulatory cost could be avoided by not repealing the rules and instead maintaining the Division’s longstanding interpretation of section 849.086 as permitting designated player games....

...legislative authority. The ALJ concluded that the Division director’s statements at the public hearing “made it clear that the intent of the proposed amendments was to change the Division’s long-standing and consistently applied construction of section 849.086 as allowing designated player games to one of prohibiting designated player games.” The ALJ also found that the administrative complaints issued soon after the notice of rulemaking were “broadly worded, and reflected [the Division’s] newly developed position” that designated player games constituted a banking game in violation of section 849.086. The ALJ made a factual finding that the Division “specifically intended the amendments repealing the designated player standards to have the effect of prohibiting designated player games.” “The evidence is conclusive t...

...The ALJ also found the repeal exceeded the Division’s grant of rulemaking authority and enlarged, modified, or contravened the specific law implemented because the Division lacked the authority to further define or establish what is an “authorized game” beyond the definition given in section 849.086. I....

...The factual findings made by the ALJ established that the Division had been approving designated player games since 2011 and had promulgated the rules to clarify for cardrooms how they could offer designated player games without conducting banking games in violation of section 849.086. 10 Then, the Division repealed these rules and contemporaneously stopped approving all designated player games, and it issued administrative complaints against cardrooms offering designate...

...in accordance with their Division-approved internal controls. The Division director even conceded that the Division intended the repeal to implement the new policy of prohibiting all designated player games based on the Division’s new interpretation of section 849.086....

...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....

...Petersburg Kennel Club v. Department of Business & Professional Regulation, Division of Pari-Mutuel Wagering, 719 So. 2d 1210, 1211 (Fla. 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 ....

...and understandable standards for cardrooms, particularly where a statute is ambiguous. Thus, it is unclear how the ALJ ultimately concluded that the Division lacked the authority to fulfill this role here, when the Division and the cardrooms have struggled for years to interpret section 849.086 in the context of designated player games....

...For convenience, this order ordinarily refers only to “banked” games, not “banking or banked” games, except when quoting. Florida law allows gaming under compacts with Indian tribes and in limited other circumstances. Under Florida Statutes § 849.086, licensed parimutuel facilities may operate cardrooms, but the statute explicitly forbids “banking” card games. Fla. Stat. § 849.086 (12)(a)....

...B Along the same lines, a Florida statute defines a “banking game” as “a game in which [1] the house is a participant in the game, taking on players, paying winners, and collecting from losers or [2] in which the cardroom establishes a bank against which participants play.” Fla. Stat. § 849.086 (2)(b) (bracketing added)....

...ding a player, that is, a game played in the manner of chemin de fer, the other example listed in the Compact and IGRA. The State says, though, that when a player acts as the bank, the cardroom does not “establish” the bank within the meaning of § 849.086(2)(b)....

...When the cardroom devises and runs the game and sets the rules, including the requirement that a player act as the bank, the card-room “establishes” a bank. Any notion that players just happen in off the street and decide on their own to establish a bank is wholly fanciful. This understanding of § 849.086(2)(b) comports with the entire purpose of distinguishing banked games (those with a bank) from unbanked games (those in which the players compete against each other for the proceeds of a common pot)....

...The statute’s preamble makes this clear: “The legislature finds that authorized games [that is, games allowed in parimutuel cardrooms] are considered to be pari-mutuel style games and not casino gaming because the participants play against each other instead of against the house.” Fla. Stat. § 849.086 (1) (emphasis added)....

...VI In reaching this conclusion, I have not overlooked the State’s insistence that only the Florida Legislature, through a duly enacted statute, may authorize gaming. No statute authorizes parimutuel cardrooms to conduct banked card games. Instead, Florida Statutes § 849.086(12)(a) prohibits the practice. The statute authorizes the Department of Business and Professional Regulation to adopt rules that “regulate the operation of cardrooms.” Id. § 849.086(4)....

...§ 120.536 ; see also Dep’t of Bus. & Prof'l Regulation v. Calder Race Course, Inc., 28 Fla. L. Weekly D1795 (Fla. 1st DCA July 29, 1988). One court has held that the Department may not adopt rules defining what is or is not a banked game within the meaning of § 849.086....

...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). This grant of rulemaking authority envisions that the Commission’s rules will “enforce” and “carry out”—or, stated another way, implement—“the provisions of [section] 849.086.” Id. In turn, subsections (4) and (4)(a) of section 849.086 state: 1 After the Final Order in this case was entered, rule 61D- 11.005(5) was transferred, without any change to the rule’s language, to Chapter 75 of the Florida Administrative Code....

...[a]dopt rules, including, but not limited to: the issuance of cardroom and employee licenses for cardroom operations; the operation of a cardroom; recordkeeping and reporting requirements; and the collection of all fees and taxes imposed by this section. § 849.086(4), 849.086(4)(a) (emphases added). Appellants argue that these provisions grant rulemaking authority but fail to provide a specific power or duty that the challenged rule may implement. Therefore, they contend that the challenged rule does not satisfy section 120.52(8)’s “flush-left” paragraph. 3 Appellants are mistaken. Section 849.086(4) imposes 3 The paragraph states: A grant of rulemaking authority is necessary but not sufficient to allow an agency to adopt a rule; a specific law to be implemented is also required. An agenc...

...extend no further than implementing or interpreting the specific powers and duties conferred by the enabling statute. 3 on the Commission a specific duty to “regulate the operation 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....

...§ 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. The Third District has held that section 849.086(4) was the law implemented in a valid rule requiring surveillance devices in cardrooms. See PPI, Inc. v. Dep’t of Bus. & Prof’l Reg., Div. of Pari-Mutuel Wagering, 698 So. 2d 306, 309 (Fla. 3d DCA 1997). Even more instructive, the First District likewise has pointed to section 849.086(4) as a law that agency rules may implement, observing that the statute permits an agency “to regulate a cardroom’s behavior, which would include providing a basic framework for permissible play.” Dep’t of Bus....

...control the operation of all public parks” provided a legitimate basis for agency rulemaking. See Frandsen v. Dep’t of Envtl. Prot., 829 So. 2d 267, 269 (Fla. 1st DCA 2002) (per curiam). The Commission’s duty to “regulate the operation of cardrooms,” § 849.086(4), fits within that same mold. Appellants observe that the Second District invalidated an agency rule that defined the game “poker.” However, the Second District did not squarely foreclose the premise that section 849.086(4)(a) can serve as the specific law that a rule implements; it held only that section 849.086(4)(a) did not provide authority for the rule at issue in that case....

...& Prof’l Reg., Div. of Pari-Mutuel Wagering, 719 So. 2d 1210, 1212 (Fla. 2d DCA 1998). 4 4 We recognize that our affirmance may be difficult to square with the Second District’s analysis in St. Petersburg Kennel Club, which noted, in part, that section 849.086 does not state the Commission “shall have the authority to make rules which set forth the definition of poker.” 719 So. 2d at 1211. This framing of 5  For the reasons explained above, section 849.086(4) and 849.086(4)(a) may serve as the specific law implemented in a rulemaking by the Commission, and the challenged rule thus satisfies section 120.52(8)’s “flush-left” paragraph. And here, the challenged rule falls within the Commission’s grant of rulemaking authority to implement section 849.086....

...Commission’s grant of rulemaking authority does not end our inquiry; we still must determine whether the rule strays beyond the implemented statute’s bounds. See § 120.52(8)(c). Appellants argue that the rule enlarges, modifies, or contravenes section 849.086 because the statute does not authorize the Commission to prohibit cardroom occupational licensees from participating in their own cardroom games. They note that other subsections of the statute speak to the question of who may participate in cardroom games. As Appellants observe, minors are categorically barred from participating, § 849.086(12)(b), and, subject to certain non- the issue stands in tension with the First District’s observation that “[t]he question is whether the statute contains a specific grant of legislative authority for the rule, not whether the grant of authority is specific enough.” Sw....

...the Second District’s decision in St. Petersburg Kennel Club. 6 discrimination requirements, the statute empowers cardroom operators to “refuse to allow any person who is objectionable, undesirable, or disruptive to play,” § 849.086(7)(g)....

...Finally, the statute requires cardroom operators to provide nonplaying dealers for certain games, specifying that such dealers “may not have a participatory interest in any game other than the dealing of cards and may not have an interest in the outcome of the game.” § 849.086(7)(c). As Appellants see it, this statutory scheme provides an exhaustive list of who is (or may be) prohibited from participating in cardroom games, and the Commission’s rule impermissibly adds to that exhaustive list....

...expression of all that shares in the grant or prohibition involved.” Id. And “[e]ven when an all-inclusive sense seems apparent, one must still identify the scope of the inclusiveness (thereby limiting implied exclusion).” Id. at 108. The contextual elements of section 849.086 do not imply a limitation on the Commission’s authority to restrict cardroom licensees from gambling where they work. The exclusion of minors from cardroom games, § 849.086(12)(b), addresses an often- protected segment of the public whose youth and vulnerability make it categorically inappropriate for them to gamble in cardrooms, irrespective of time or place....

...regulated industry, no less—under certain circumstances. And indeed, the statute recognizes that certain adults are not appropriate cardroom players, empowering cardroom operators to exclude prospective adult patrons on several enumerated bases. 7 § 849.086(7)(g). Appellants would have us infer from that provision that the statute removes the Commission’s authority to bar licensees from gambling at their workplaces, but again, they overstate the scope of the implied exclusion. Section 849.086(7)(g) concerns a common feature of houses of vice: the proprietor’s need to exclude unruly patrons....

...nothing about the Commission’s regulatory authority. Much less does the provision imply that it takes a key component of cardroom operations outside the Commission’s purview, only to place it in the hands of the regulated parties in a “strictly regulate[d]” industry. § 849.086(1). Finally, the requirement that cardroom operators provide non-playing dealers for certain games, see § 849.086(7)(c), might fairly imply that the operators have no statutory duty to provide non-playing dealers for other games....

...whether the duty that it places on operators should imply any limitation on the Commission’s regulatory authority. Stated plainly, the Legislature has obligated and empowered the Commission to adopt rules regulating cardroom operations, the challenged rule implements section 849.086(4) and 849.086(4)(a) by regulating a core aspect of cardroom operations, and section 849.086’s other scattered provisions do not imply a restriction on the Commission’s authority to prohibit licensees from gambling at their workplaces. The ALJ correctly concluded that the challenged rule regulates an aspect of cardroom operations and does not enlarge, contravene, or modify section 849.086. Appellants, then, are left to argue that the Commission’s duty and power to regulate cardroom operations are not specific enough. They assert that, if the Commission “has ‘open-ended’ authority to adopt any rule related to cardroom operations,” then “it would have unrestricted discretion in implementing section 849.086.” But as the ALJ correctly concluded, in this APA challenge to an agency’s exercise of delegated legislative authority, the questions we must ask are whether the rule “has exceeded [the Commission’s] grant of rulemaking author...

...ge in Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering v. Calder Race Course, Inc., 913 So.2d 601 (Fla. 1st DCA *562 2005) (unpublished table opinion), 2 conflicted with the bet and raise limitations enumerated in section 849.086(8) (b), Florida Statutes....

cardroom gaming at pari-mutuel facilities under section 849.086(16), Florida Statutes, as created by Chapter

...Florida law distinguishes between nonbanked (Class II) card games and banked (Class III) card games. 9 A “banking game” is one “in which the house is a participant in the game, taking on players, paying winners, and collecting from losers or in which the cardroom establishes a bank against which participants play.” § 849.086(2)(b); see § 849.086(1), Fla. Stat. (deeming banked games to be “casino gaming”). Florida law authorizes card-rooms at pari-mutuel facilities for games of “poker or dominoes,” but only if they are played “in a nonbanking manner.” § 849.086(2), Fla. Stat.; see § 849.086(1)-(3). Florida law prohibits banked card games, however. See § 849.086(12)(a), (15)(a)....

consistent with Section 849.085(2)(a) and Section 849.086, Florida Statutes, and the rules promulgated