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

Florida Court of Appeals, Third District

May 31, 2017

West Flagler Associates, Ltd., Appellant/Cross-Appellee,
v.
The State of Florida, Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering, Appellee, and Hartman and Tyner, Inc., and H & T Gaming, Inc., Appellees/Cross-Appellants.

          Not final until disposition of timely filed motion for rehearing.

         An 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.

          Jason 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 Wagering.

          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.

          Before ROTHENBERG, SALTER and FERNANDEZ, JJ.

          SALTER, J.

         West 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.[1] Two entities which sought leave to intervene in the administrative proceeding (Hartman and Tyner, Inc., and H&T Gaming Inc.)[2] cross-appeal DPMW's denial of their motion to intervene as moot.

         We 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 amended petition.

         Background and Procedural History

         West 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).

         West 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 facility" ...

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