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

Florida Court of Appeals, Third District

May 3, 2017

West Flagler Associates, Ltd., Appellant,
v.
The Department of Business and Professional Regulation, Divisionof Pari-Mutuel Wagering, Appellee.

         Not final until disposition of timely filed motion for rehearing.

          An Appeal from the Department of Business and Professional Regulation Lower Tribunal Nos. 2015-30307, 2015-30305, Division of Pari-Mutuel Wagering.

          The Lockwood Law Firm, John M. Lockwood, Thomas J. Morton and Kala Kelly Shankle (Tallahassee), for appellant.

          Jason Maine, General Counsel, and Dwight O. Slater, Chief Appellate Counsel (Tallahassee), for appellee.

          Before ROTHENBERG, EMAS and FERNANDEZ, JJ.

          EMAS, J.

          West Flagler Associates, Ltd. ("West Flagler") appeals a final order of the Florida Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering ("the Division"), which denied West Flagler's two applications for summer jai alai permits. For the reasons that follow, we affirm, holding that the Division properly construed and applied section 550.0745(1), Florida Statutes (2015).

         BACKGROUND

         West Flagler is the owner of a pari-mutuel permit and is one of seven permit holders authorized to conduct pari-mutuel pools on exhibition sports in Miami-Dade County. In 2015, West Flagler filed two separate applications with the Division, each application seeking a new summer jai alai permit pursuant to section 550.0745(1), which provides:

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 on such dates as may be selected by such permittee for the same number of days and performances as are allowed and granted to winter jai alai frontons within such county. 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, notwithstanding mileage and permit ratification requirements.

(Emphasis added).

         West Flagler's first application for a new summer jai alai permit was based on state fiscal years 2012-13 and 2013-14 ("the First Application"); its second application was based on state fiscal years 2013-14 and 2014-15 ("the Second Application"). In each application, West Flagler took the position that South Florida Racing Association ("SFRA") was the permit holder with the smallest play or total pool for each of the relevant fiscal periods, and thus, that SFRA was eligible to convert its pari-mutuel permit to a summer jai alai permit. West Flagler asserted that, because SFRA declined on each occasion to convert its permit to a summer jai alai permit, section 550.0745(1) required that a new summer jai alai permit be created and made available for each of those two-year periods.

         On July 10, 2015, the Division denied both of West Flagler's applications. As to the First Application, the Division concluded that there was no single permit holder with the smallest play or total pool for fiscal years 2012-13 and 2013-14.[1]

          As to the Second Application, the Division concluded that Summer Jai Alai Partnership ("SJAP") was the permit holder with the smallest play or total pool for fiscal years 2013-14 and 2014-15, and because SJAP was already the holder of a summer jai alai permit, it was not eligible under the statute to "convert" its existing summer jai alai permit to a "new" summer jai alai permit. Therefore, no new summer jai alai permit was created for those fiscal periods.

         West Flagler filed petitions for administrative hearings on each application denial. The petitions were consolidated and referred to the Department of Administrative Hearings.

         Two issues of statutory construction were central to the determinations made at the final hearing, held before an Administrative Law Judge: (1) Whether the term "smallest play or total pool, " as used in section 550.0745(1), includes only live wagers[2] and intertrack wagers, [3] or whether that term also includes "simulcast export" wagers[4] (i.e., out-of-state wagers); and (2) Whether under section 550.0745(1), a summer jai alai permit holder is eligible to "convert" its existing summer jai alai permit into a "new" summer jai alai permit.

          West Flagler's position was that the statutory term "play or total pool" should be construed to include live wagers and intertrack wagers, but not simulcast export wagers. Applying such a construction, SFRA would have had the smallest play or total pool in Miami-Dade County for the relevant years. Thus, West Flagler contended, because SFRA was eligible to convert its permit but declined to do so, two new summer jai alai ...


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