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Gretna Racing, LLC v. Florida Department of Business and Professional Regulation

Supreme Court of Florida

May 18, 2017

GRETNA RACING, LLC, Petitioner,
v.
FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION, etc., Respondent.

         NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND IF FILED, DETERMINED.

         Application for Review of the Decision of the District Court of Appeal - Certified Great Public Importance First District - Case No. 1D14-3484

          David S. Romanik of David S. Romanik, P.A., Oxford, Florida; and Marc W. Dunbar, Tallahassee, Florida, for Petitioner

          Pamela Jo Bondi, Attorney General, and Denise M. Harle and Jonathan L. Williams, Deputy Solicitors General, Tallahassee, Florida, for Respondent

          Philip J. Padovano of Brannock & Humphries, Tallahassee, Florida, for Amicus Curiae City of Gretna

          John M. Lockwood and Kala Kelly Shankle of The Lockwood Law Firm, Tallahassee, Florida, for Amici Curiae Investment Corporation of Palm Beach, Bonita-Fort Myers Corporation, and Melbourne Greyhound Park, LLC

          David J. Weiss of Ausley & McMullen, P.A., Tallahassee, Florida, for Amicus Curiae Gadsden County

          Dan Gelber, Adam Schachter, and Freddy R. Funes of Gelber Schachter & Greenberg, P.A., Miami, Florida, for Amicus Curiae Honorable Daniel Robert "Bob" Graham

          David K. Miller of Broad and Cassel, Tallahassee, Florida, and Mark M. Barber of Broad and Cassel, Tampa, Florida, for Amicus Curiae No Casinos, Inc.

          CANADY, J.

         "Shall slot machines be approved for use at the pari-mutuel [horse track] facility in Gretna, F[lorida]?" This is the question presented by the Gadsden County Commission to the county's voters in a ballot question. And it is the question we now must decide. A majority of the voters answered the question in the affirmative, but the Division of Pari-Mutuel Wagering subsequently denied a slot machine permit to Gretna Racing, LLC. In Gretna Racing, LLC v. Department of Business & Professional Regulation, Division of Pari-Mutuel Wagering, 178 So.3d 15 (Fla. 1st DCA 2015), the First District upheld the Division's denial of the permit and certified a question of great public importance, which establishes our jurisdiction. See art. V, § 3(b)(4), Fla. Const. Gretna Racing contends that the Division was required to issue the permit once the voters had answered the ballot question in the affirmative. Based on the provisions of chapter 551, Florida Statutes (2013), governing slot machines and the law establishing the powers of non-charter counties, we conclude that the Division's denial of the slot machine permit sought by Gretna Racing was correct because submission of the ballot question to the voters was not legally authorized.

         I.

         In 2004, Florida's voters adopted a constitutional provision authorizing countywide referenda in Miami-Dade and Broward Counties to approve slot machines at certain existing pari-mutuel facilities. See art. X, § 23, Fla. Const. (2004). Under this provision,

the governing bodies of Miami-Dade and Broward Counties each may hold a county-wide referendum in their respective counties on whether to authorize slot machines within existing, licensed parimutuel facilities (thoroughbred and harness racing, greyhound racing, and jai-alai) that have conducted live racing or games in that county during each of the last two calendar years before the effective date of this amendment.

Id. § 23(a). The provision specified that slot machines will be authorized for qualifying facilities upon approval by the voters, id., and directed the Legislature to adopt implementing legislation, id. § 23(b).

         Section 551.104(1), Florida Statutes (2013), provides for the issuance by the Division of licenses "to conduct slot machine gaming." Under section 551.104(1), the Division is authorized to issue such licenses to an "eligible facility"-a term that is defined in section 551.102(4). But section 551.104(2) goes on to establish an additional condition for the issuance of licenses: "An application may be approved by the division only after the voters of the county where the applicant's facility is located have authorized by referendum slot machines within pari-mutuel facilities in that county as specified in s. 23, Art. X of the State Constitution." So by its plain terms, section 551.104(2) limits licenses to facilities in counties where the voters have approved slot machines as provided by article X, section 23- which does not extend beyond Miami-Dade and Broward Counties.

         Yet the definition of "eligible facility" in section 551.102(4), Florida Statutes (2013), contemplates the issuance of licenses in additional circumstances:

"Eligible facility" means [1] any licensed pari-mutuel facility located in Miami-Dade County or Broward County existing at the time of adoption of s. 23, Art. X of the State Constitution that has conducted live racing or games during calendar years 2002 and 2003 and has been approved by a majority of voters in a countywide referendum to have slot machines at such facility in the respective county; [2] any licensed pari-mutuel facility located within a county as defined in s. 125.011, provided such facility has conducted live racing for 2 consecutive calendar years immediately preceding its application for a slot machine license, pays the required license fee, and meets the other requirements of this chapter; or [3] any licensed parimutuel facility in any other county in which a majority of voters have approved slot machines at such facilities in a countywide referendum held pursuant to a statutory or constitutional authorization after the effective date of this section in the respective county, provided such facility has conducted a full schedule of live racing for 2 consecutive calendar years immediately preceding its application for a slot machine license, pays the required licensed fee, and meets the other requirements of this chapter.

         This statutory definition contains three clauses-indicated by the bold bracketed numerals-that address distinct circumstances. The first clause implements article X, section 23. It was adopted in 2005. See ch. 2005-362, § 1, Laws of Fla. The second and third clauses were both adopted in 2009. See ch. 2009-170, § 19, Laws of Fla.[1] The second clause pertains to facilities in counties "defined in s. 125.011"-that is, "any county operating under a home rule charter adopted pursuant to ss. 10, 11, and 24, Art. VIII of the Constitution of 1885, as preserved by Art. VIII, s. 6(e) of the Constitution of 1968, which county, by resolution of its board of county commissioners, elects to exercise the powers" conferred on such counties. § 125.011(1), Fla. Stat. (2013). The second clause has no referendum requirement. And it has no application to Gadsden County.

         The controversy in this case in large part centers on the third clause. More particularly, it centers on whether Gadsden County is a "county in which a majority of voters have approved slot machines . . . in a countywide referendum held pursuant to a statutory or constitutional authorization after the effective date of this section." § 551.102(4), Fla. Stat. (2013). As we subsequently explain, we conclude that the third clause-properly understood-is dispositive. But first we briefly review the grounds for the Division's denial of a slot machine license to Gretna Racing, the ruling of the First District regarding those grounds, and the question of great public importance certified by the First District.

         II.

         The Division denied a slot machine gaming license to Gretna Racing based on the Division's conclusion that the requirements of neither section 551.104(2) nor the ...


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