final until disposition of timely filed motion for rehearing.
Appeal from the Department of Business and Professional
Regulation Lower Tribunal Nos. DBPR: 2016-014603, DS
2016-020, Division of Pari-Mutuel Wagering.
Akerman LLP and Katherine E. Giddings and Kristen M. Fiore
(Tallahassee), and Gerald B. Cope, Jr., and Tamara S. Malvin
(Fort Lauderdale), for Appellant/Cross-Appellee.
Maine, General Counsel, and Chevonne Christian, Assistant
General Counsel, and Dwight O. Slater, Chief Appellate
Counsel (Tallahassee), for appellee Department of Business
and Professional Regulation, Division of Pari-Mutuel
Rutledge Ecenia and J. Stephen Menton and Gary R. Rutledge
and Tana D. Storey and Gabe F.V. Warren (Tallahassee), for
appellees/cross-appellants Hartman and Tyner, Inc. and H
& T Gaming, Inc.
ROTHENBERG, SALTER and FERNANDEZ, JJ.
Flagler Associates, Ltd. ("West Flagler"), appeals
an order of the Department of Business and Professional
Regulation's Division of Pari-Mutuel Wagering
("DPMW") concluding that DPMW was "unable to
answer" West Flagler's amended petition for a
declaratory statement. Two entities which sought leave to
intervene in the administrative proceeding (Hartman and
Tyner, Inc., and H&T Gaming Inc.) cross-appeal DPMW's
denial of their motion to intervene as moot.
reverse and remand DPMW's order with directions to
consider and rule upon both West Flagler's amended
petition and the cross-appellants' motion to intervene.
We decline West Flagler's request to render a
"complete determination" (Florida Rule of Appellate
Procedure 9.040(a)) of the legal issues in West Flagler's
and Procedural History
Flagler holds a pari-mutuel permit to conduct greyhound
racing in Miami-Dade County. Under a separate license, West
Flagler also operates slot machine gaming in the County. The
greyhound racing facility, known as Magic City Casino,
qualified as an "eligible facility" for the slot
machine gaming under the 2004 Florida constitutional
amendment authorizing slot machines, article X, section 23,
and the legislation implementing the amendment, section
551.102(4), Florida Statutes (2016).
Flagler also holds a pari-mutuel permit to operate a jai alai
fronton in Miami-Dade County. Before implementing a business
plan to substitute jai alai operations for the greyhound
racing at the Magic City Casino facility, West Flagler sought
a declaratory statement from DPMW that the jai alai facility
would remain qualified as an "eligible facility"
for slot machine operations. In its amended petition to DPMW,
West Flagler inquired:
Question 1: Whether West Flagler's facility located at
450 N.W. 37th Avenue, Miami, Florida, 33126, must continue to
run the same type of racing or gaming that first qualified
the facility to become an "eligible facility"
pursuant to section 551.102(4), Florida Statutes.
Question 2: Whether, pursuant [to] section 551.102(4),
Florida Statutes, West Flagler may discontinue the operation
of greyhound races and instead operate a full schedule of jai
alai performances in order to maintain its "eligible