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West Flagler Associates, Ltd. v. Florida Department of Business And Professional Regulation

Florida Court of Appeals, First District

April 4, 2017

WEST FLAGLER ASSOCIATES, LTD., Appellant,
v.
FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION, DIVISION OF PARI-MUTUEL WAGERING, Appellee.

         NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

         An appeal from the Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering. Anthony J. Glover, Director.

          Thomas J. Morton, John M. Lockwood, and Kala Kelly Shankle of The Lockwood Law Firm, Tallahassee, for Appellant.

          Jason L. Maine, General Counsel, Dwight O. Slater, Chief Appellate Counsel, and Chevonne T. Christian, Assistant General Counsel, Department of Business & Professional Regulation, Tallahassee, for Appellee.

          JAY, J.

         Once again, "[s]ummer jai alai permits are the focus of this appeal." W. Flagler Assocs., Ltd. v. Dep't of Bus. & Prof'l Regulation, Div. of Pari-Mutuel Wagering, 139 So.3d 419, 420 (Fla. 1st DCA 2014). Specifically, we address whether the Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering ("Division"), erroneously interpreted the provisions of section 550.0745(1), Florida Statutes (2015), in denying the application of West Flagler Associates, Ltd. ("West Flagler"), for a permit to conduct summer jai alai. Finding that the basis for the Division's denial of the permit was premised on "an insupportable reading of the statute, " we reverse. W. Flagler, 139 So.3d at 420.

         On September 3, 2015, West Flagler filed with the Division an "Application for New Summer Jai Alai Permit" for the 2011-2012 and 2012-2013 fiscal years pursuant to paragraph (1) of section 550.0745. Paragraph (1) states in pertinent part:

The owner or operator of a pari-mutuel permit who is authorized by the division to conduct pari-mutuel pools on exhibition sports in any county having five or more such pari-mutuel permits and whose mutuel play from the operation of such pari-mutuel pools for the 2 consecutive years next prior to filing an application under this section has had the smallest play or total pool within the county may apply to the division to convert its permit to a permit to conduct a summer jai alai fronton in such county during the summer season commencing on May 1 and ending on November 30 of each year . . . . If a permittee who is eligible under this section to convert a permit declines to convert, a new permit is hereby made available in that permittee's county to conduct summer jai alai games as provided by this section . . . .

         The West Flagler application was filed after the permittee-who was found eligible to convert its existing permit-declined to make the statutory conversion. See S. Fla. Racing Ass'n v. State, Dep't of Bus. & Prof'l Regulation, Div. of Pari-Mutuel Wagering, 201 So.3d 57 (Fla. 3d DCA 2015).

         On September 25, 2015, the Division issued a Letter of Intent in which it denied West Flagler's application, claiming:

Section 550.0745, Florida Statutes, states in pertinent part "[t]he owner or operator of a pari-mutuel permit who is authorized by the division to conduct pari-mutuel pools on exhibition sports in any county having five or more such pari-mutuel permits and whose mutual play from the operation of such pari-mutuel pools for the 2 consecutive years next prior to filing an application under this section has had the smallest play or total pool within the county may apply to the division to convert its permit to a permit to conduct a summer jai alai fronton." ([E]mphasis supplied). Section 550.0745, Florida Statutes, creates an exception to the general requirements to obtaining a pari-mutuel permit found in section 550.054, Florida Statutes. Specifically, the statute exempts the applicant from mileage restrictions and referendum requirements imposed by the general permit statute. Thus, section 550.0745, Florida Statutes, must be strictly construed in determining whether a permit is eligible for conversion to a summer jai alai permit, or whether such permit is available if the eligible permitholder declines to convert.
The application is based on the 2011/2012 and 2012/2013 fiscal years, which are not the 2 consecutive years next prior to the filing of this application. Therefore, your application is incapable of being approved and the division is not making any further determination on the merits of the availability of a permit.

         West Flagler petitioned for an informal administrative hearing pursuant to section 120.57(2), Florida Statutes. In its petition, it argued that the Division erred in denying the application because the Division erroneously applied the "next prior" language found in the first sentence of section 550.0745(1) to its application for a new summer jai alai permit filed according to the second sentence of that paragraph.

         The "next prior" language, according to West Flagler, is limited to summer jai alai conver ...


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