STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
FLORIDA STANDARDBRED BREEDERS AND OWNERS ASSOCIATION, INC,
vs.
Petitioner,
Case No. 19-0267RU
DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION, DIVISION OF PARI-MUTUEL WAGERING,
Respondent, and
PPI, INC.,
Intervenor.
/
FINAL ORDER
A hearing was conducted in this case pursuant to sections 120.56(4), 120.569, and 120.57(1), Florida Statutes (2019),1 before Cathy M. Sellers, an Administrative Law Judge ("ALJ") of the Division of Administrative Hearings ("DOAH"), on April 24 through April 26, 2019, and June 10 through 12, 2019, in Tallahassee, Florida.
APPEARANCES
For Petitioner: Bradford J. Beilly, Esquire
Beilly and Strohsahl, P.A. 1144 Southeast Third Avenue
Fort Lauderdale, Florida 33316-1110
1 All statutory citations are to the 2019 version of Florida Statutes unless otherwise stated.
For Respondent Department of Business and Professional
Regulation, Division of Pari-Mutuel Wagering:
Megan Silver, Esquire Kristina Roberts, Esquire Department of Business and Professional Regulation 2601 Blair Stone Road
Tallahassee, Florida 32399-2022 For Respondent PPI, Inc.:
Leonard M. Collins, Esquire GrayRobinson, P.A.
301 South Bronough Street, Suite 600
Tallahassee, Florida 32301
M. Stephen Turner, Esquire Nelson Mullins Broad and Cassel
215 South Monroe Street, Suite 400
Tallahassee, Florida 32301
STATEMENT OF THE ISSUES
The issues to be determined in this proceeding are: (1) whether any of the following alleged agency statements as articulated by Petitioner, Florida Standardbred Breeders and Owners Association, Inc., are unadopted rules, and (2) if so, whether the Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering, relied on any of the unadopted rules as a basis for issuing the summer jai alai permit at issue in Case No.
18-6339 to PPI, Inc.2:
2 On January 16, 2019, Petitioner filed the Petition Challenging Agency Statement as an Unadopted Rule and Motion to Consolidate with Pending Case No. 18-6339 ("Rule Challenge Petition") that gave rise to this case. The Rule Challenge Petition was filed pursuant to sections 120.57(1)(e) and 120.56(4), and articulated ten statements that Petitioner alleges constitute unadopted rules on which the Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering, relied in issuing the summer jai permit to PPI, Inc. The Rule Challenge Petition had the effect of amending the Petition for Formal Administrative Hearing Involving Disputed Issues of Material Fact that was filed with the agency on November 16, 2018, and referred to DOAH on December 3, 2018, to add a charge that the agency had relied on one or more unadopted rules as the basis of its decision, in violation of section 120.57(1)(e)1.
That notwithstanding the provisions of section 550.0745(1)[Florida Statutes], the Division will approve an application for a summer jai alai permit without regard to whether there is an eligible permitholder in an eligible county that has had the smallest play or total pool within one of the applicable counties, Miami-Dade or Broward, for two consecutive state fiscal years;
That notwithstanding the provisions of section 550.0745(1), a summer jai alai permit was created in Broward County in association with the consecutive state fiscal years 2006/2007 and 2007/2008 notwithstanding that there was no eligible permitholder in Broward County that had the smallest play or total pool in Broward County for both of said consecutive fiscal years, 2006/2007 and 2007/2008;
That notwithstanding the provisions of section 550.0745(1), the Division approved PPI's application for a summer jai alai permit without regard to the fact that there was no eligible permitholder in Broward County that had the smallest play or total pool in Broward County for both of the two consecutive state fiscal years identified in PPI's application, to-wit: 2006/2007 and 2007/2008;
That notwithstanding the provisions of section 550.0745(1), a summer jai alai permit was created in Broward County in association with the consecutive state fiscal years 2004/2005 and 2005/2006, notwithstanding that there was no eligible permitholder in Broward County that had the smallest play or total pool for both of said consecutive state fiscal years, 2004/2005 and 2005/2006;
That notwithstanding the provisions of section 550.0745(1), the Division approved PPI's application for a summer jai alai permit without regard to the fact that there was no eligible permitholder in Broward County that had the smallest play or total pool in Broward County for both of the two consecutive state fiscal years identified in the Division's calculation chart
attached as Exhibit F [to the Rule Challenge Petition], to-wit: 2004/2005 and 2005/20063;
That notwithstanding the provisions of section 550.0745(1), the Division, in making the calculations required by section 550.0745(1) for the purposes of determining the availability of a summer jai permit, improperly and erroneously excludes from such calculations the pari-mutuel handle generated by each of the pari-mutuel permitholders in Broward County on the following wagering pools/categories, to-wit: [i]ntertrack wagering handle as a guest; [i]ntertrack wagering as a host on "ITW rebroadcasts;" and "[s]imulcast handle as a guest;"
That notwithstanding the provisions of section 550.0745(1), the Division approved PPI's application for a summer permit after improperly and erroneously excluding from the calculations required by section 550.0745 the pari-mutuel handle generated by each of the pari-mutuel permitholders in Broward County on the following wagering pools/categories, to-wit: [i]ntertrack wagering handle as a guest; [i]ntertrack wagering as a host on "ITW rebroadcasts;" and "[s]imulcast handle as a guest;"
That notwithstanding the provisions of section 550.0745(1), the Division, in making the calculations required by section 550.0745(1) for the purposes of determining that the Bet Miami permit had the smallest pari- mutuel handle in Broward County for the consecutive fiscal years 2004/2005 and 2005/2006, improperly and erroneously excluded from such calculations all of the pari-mutuel handle generated by the Bet Miami permit during said consecutive state fiscal years, 2004/2005 and 2005/2006, and instead erroneously pro-rated the handle between the two leased locations at which the Bet Miami permit operated during said fiscal years;
That notwithstanding the provisions of section 95.11 or any
similar statute that imposes a statute of limitation on the taking or initiation
3 Rule Challenge Petition Exhibit F contains the same information as Exhibit B to the parties' Amended Joint Pre-hearing Stipulation, which has been incorporated in Finding of
of any particular action, the Division will approve an application for a summer jai alai permit notwithstanding that the application was filed outside either the four-year period described in section 95.11 or outside the applicable limitation period if not section 95.11.
PRELIMINARY STATEMENT
On October 26, 2018, Respondent, Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering ("Division"), issued a permit to Operate a Summer Jai Alai Fronton to Respondent, PPI, Inc. ("PPI"). On November 16, 2018, Petitioner, Florida Standardbred Breeders and Owners Association, Inc. ("FSBOA"), filed a Petition for Formal Administrative Hearing Involving Disputed Issues of Material Fact ("Permit Challenge Petition"). On December 3, 2018, the matter was referred to DOAH and was assigned Case No. 18-6339. The final hearing initially was scheduled for February 14, 15, and 18, 2019, but pursuant to the parties' agreement,
was rescheduled for April 15 through 19, 2019. On February 25, 2019, PPI was granted party status as an intervenor in Case No. 19-0267RU. On March 13, 2019, PPI filed an Unopposed Motion for Continuance, requesting a brief continuance; the motion was granted and the final hearing was rescheduled for April 25 through 26, 29, and 30, 2019.
On December 21, 2018, PPI filed PPI, Inc.'s Motion to Dismiss, and on December 26, 2018, the Division filed its Motion to Dismiss for Lack of Standing (collectively, "Motions to Dismiss Permit Challenge"), seeking to have Case No. 18-6339 dismissed on the basis that FSBOA lacks standing to challenge issuance of the Permit. Pursuant to an extension of time to file its response, FSBOA filed Petitioner's Response to Respondents' Motions to Dismiss for Lack of Standing ("Response") on January 14, 2019. On January 18, 2019, the undersigned conducted a telephonic hearing on the Motions to
Fact No. 148 of this Final Order..
Dismiss Permit Challenge and Response. On February 7, 2019, the undersigned issued an Amended Order Denying Motions to Dismiss.
On January 16, 2019, FSBOA filed its Petition Challenging Agency Statement as an Unadopted Rule and Motion to Consolidate with Pending DOAH Case No. 18-6339 ("Rule Challenge Petition"). This matter was assigned Case No. 19-0267RU. Pursuant to the Order of Consolidation issued on February 12, 2019, Case Nos. 18-6339 and 19-0267RU were consolidated for purposes of conducting the final hearing.4
The Rule Challenge Petition identified several alleged agency statements that FSBOA claims constitute unadopted rules, and seeks relief pursuant to both sections 120.57(1)(e) and 120.56(4). For purposes of this Final Order issued under section 120.56(4), the undersigned has determined whether any of the alleged agency statements constitute unadopted rules. For purposes of the Recommended Order issued in Case No. 18-6339, the undersigned treated the request for relief under section 120.57(1)(e) as constituting an amendment to the Permit Challenge Petition, and considered whether, pursuant to section 120.57(1)(e), the alleged agency statements identified in the Rule Challenge Petition are rules, as defined in section 120.52(16), and if so, whether any such unadopted rules constituted a basis for the agency action that was challenged under sections 120.569 and 120.57(1).
On April 23, 2019, the parties filed an Amended Joint Pre-hearing Stipulation, stipulating to certain facts that required no proof at the final hearing.5
4 Case Nos. 18-6339 and 19-0267RU were consolidated for purposes of conducting the final hearing. This Final Order is issued pursuant to section 120.56(4). Pursuant to section 120.57(1)(k), a separate Recommended Order is being issued in Case No. 18-6339.
5 On April 23, 2019, the parties filed an Amended Joint Pre-hearing Stipulation, which amended and superseded the previously-filed Joint Pre-hearing Stipulation. On October 11,
The final hearing was held on April 24 through 26, 2019,6 but was not completed. Pursuant to the parties' availability, the final hearing was continued to, and conducted on, June 10 through 12, 2019. The hearing concluded on June 12, 2019.
PPI presented the testimony of Troy Buswell and Tracy Swain. PPI's Exhibit Nos. 1A, 2, and 4 through 23, including subparts, were admitted into evidence without objection. PPI's Exhibit Nos. 1B1 through 1G2 and Exhibit No. 3 were admitted into evidence over objection. The Division presented the testimony of Tracy Swain and Jamie Pouncey, and Division Exhibits 1 through 3 were admitted into evidence without objection. FSBOA presented the testimony of Joseph Pennacchio and David Romanik in its case-in-chief and presented the testimony of Dein Spriggs in its rebuttal case. FSBOA's Exhibits E, G, H, I, L, and M were admitted into evidence without objection, and FSBOA's Exhibits A through D, J, and K were admitted into evidence over objection. FSBOA's Exhibit F was not admitted into evidence and was proffered. Additionally, the undersigned took official recognition of chapters 80-88, 91-197, and 92-348, Laws of Florida.
At the conclusion of the final hearing, the parties agreed to extend the applicable deadlines for filing proposed recommended orders in Case No. 18-6339 and proposed final orders in Case No. 19-0267RU to 45 days after the transcript was filed at DOAH. The parties also agreed to waive the applicable rule and statutory deadlines for issuance of the recommended order in Case No. 18-6339 and issuance of the final order in 19-0267RU.
2019, the parties filed an Addendum to the Amended Joint Pre-hearing Stipulation, adding stipulated facts. Also on October 11, 2019, the parties filed a Joint Notice of Scrivener's Error, correcting a stipulated fact set forth in the Amended Joint Pre-hearing Stipulation.
6 The parties waived the requirement, pursuant to section 120.56(4)(b), that the final hearing in Case No. 19-0267RU be held within 30 days of the date the case is assigned to the ALJ.
The final volume of the eight-volume Transcript was filed with DOAH on July 29, 2019, and a Second Amended Supplemental Notice of Filing Transcript was issued on July 31, 2019, establishing a deadline of September 12, 2019, for the parties to file their proposed recommended orders in Case No. 18-6339 and proposed final orders in Case No. 19-0267RU. Pursuant to the parties' motions, these deadlines subsequently were extended to October 3, 2019, then to October 11, 2019.
On October 11, 2019, PPI timely filed its Proposed Recommended Order in Case No. 18-6339 and Proposed Final Order in Case No. 19-0267RU, and FSBOA timely filed its Proposed Recommended Order and Proposed Final Order in both cases. The Division filed its Proposed Recommended Order and Proposed Final Order in both cases on October 14, 2019. In conjunction with its proposed orders, the Division filed an unopposed motion to deem its proposed order timely filed, and that motion was granted.
The undersigned has duly considered the parties' proposed orders in preparing this Final Order.
FINDINGS OF FACT
The Parties
Respondent Division is the state agency charged under section 550.0251, with regulating and administering the pari-mutuel industry in Florida, pursuant to chapter 550 and the rules implementing that statute.
The Division also regulates cardroom activities, pursuant to section 849.086, Florida Statutes, and slot machine gaming pursuant to section 551.104, Florida Statutes.
The Division is authorized to issue summer jai alai permits pursuant to section 550.0745. The Division issued the summer jai alai permit that has been challenged in this proceeding.
Petitioner FSBOA is the statewide trade association that represents the interests of the majority of the breeders, owners, trainers, and drivers of harness racing horses involved in the Florida standardbred horse industry. FSBOA has challenged the summer jai alai permit at issue in this proceeding.
Intervenor PPI is the applicant for the permit at issue in Case No. 18- 6339. PPI's business address is 1800 Southwest 3rd Street, Pompano Beach, Florida.
Facts Stipulated By The Parties
The parties stipulated to the facts set forth in paragraphs 7 through 61 herein, proof of which was not required to be provided at the final hearing. For purposes of this Final Order, the undersigned has grouped the facts stipulated in the parties' Amended Joint Prehearing Stipulation, as supplemented by the parties' Addendum to the Joint Prehearing Stipulation and corrected by the parties' Joint Notice of Scrivener's Error, according to the specific topic that the specific stipulated fact addresses.
Application And Issuance of Permit
PPI owns Pompano Park, a pari-mutuel facility that has an associated cardroom and casino, located in Pompano Beach, Broward County, Florida. Pompano Park has hosted pari-mutuel activities since 1964.
PPI, which does business as "Pompano Park Racing," is a pari-mutuel permitholder situated in Broward County. PPI is authorized by the Division to conduct pari-mutuel pools on exhibition sports in Broward County.
PPI owns permit #430, which authorizes it to conduct standardbred horse harness racing. PPI also owns permit #535, which authorizes it to conduct quarter horse racing.
On April 13, 2018, PPI filed an application with the Division, seeking issuance of a summer jai alai permit, pursuant to section 550.0745.
PPI's application was accompanied by a cover letter stating that the application was for the "most-recently available" summer jai alai permit in
Broward County. The letter stated that H&T Gaming, Inc. ("H&T"), had the smallest play or total pool in Broward County for state fiscal years 2006/2007 and 2007/2008.
At all times material to this proceeding, PPI was a qualified applicant for the summer jai alai permit at issue in this proceeding.
On or before October 26, 2018, the Division deemed PPI's application complete and in compliance with all statutory requirements and agency rules. As noted above, the Division issued the summer jai alai permit on October 26, 2018.
Permit #141 - Background And Current Circumstances
831 Federal Highway Acquisition Holding, LLC ("831 Acquisition"), which does business as The Big Easy Casino, is the permitholder of permit #141, a greyhound racing permit situated in Miami-Dade County and authorized by the Division to conduct pari-mutuel pools on exhibition sports in Broward County.
831 Acquisition operates and conducts the pari-mutuel pools authorized to be conducted in Broward County under permit #141, at a leased facility in Broward County that is owned by a corporation affiliated with 831 Acquisition.
By way of background, in 1996, Biscayne Kennel Club, Inc., d/b/a Biscayne Kennel Club, transferred permit #141 to two entities—Investment Corporation of South Florida Inc. ("Investment Corp."), a division of H&T, d/b/a as Hollywood Greyhound Track; and West Flagler Associates, Ltd., d/b/a Flagler Greyhound Track. Each entity owned 50 percent of permit #141.
In 2001, Investment Corp. was merged into Hartman and Tyner, Inc. ("Hartman and Tyner"), with the latter as the surviving corporation.
In state fiscal years 2004/2005 and 2005/2006, Hartman and Tyner and West Flagler, d/b/a Bet Miami Greyhounds ("Bet Miami") were the owners and operators of permit #141, a pari-mutuel permit authorized by the Division to conduct pari-mutuel pools in Broward County.
In 2007, West Flagler Associates, d/b/a Flagler Dogs & Poker ("West Flagler"), transferred its 50-percent interest in permit #141 to Hartman and Tyner, d/b/a Mardi Gras Racetrack and Gaming Center. At that point, Hartman and Tyner owned a 100-percent interest in permit #141.
In 2008, Hartman and Tyner transferred ownership of permit #141 to H&T, d/b/a Mardi Gras Gaming.
H&T owned and operated permit #141 between 2008 and 2018.
In 2018, H&T transferred ownership of permit #141 to 831 Acquisition, d/b/a Big Easy Casino.
From approximately 1996 to 2008, permit #141 was situated in Miami- Dade County and was authorized by the Division to conduct pari-mutuel pools on exhibition sports in Miami-Dade County and in Broward County.
From 2008 through present, permit #141 has been authorized by the Division to conduct pari-mutuel sports only in Broward County.
Determination of Summer Jai Alai Permit Availability In Broward County
At all times material to this proceeding, Miami-Dade County and Broward County each have had five or more pari-mutuel permits issued to conduct pari-mutuel wagering within that county.
The Division reviewed PPI's application and correctly determined that PPI was a qualified applicant for issuance of a summer jai alai permit pursuant to all applicable Florida Statutes and rules.
Upon determining that PPI was a qualified applicant for a summer jai alai permit, the Division next determined whether a summer jai alai permit was available in Broward County.
In determining the availability of a summer jai alai permit in Broward County, the Division reviewed its records, including a chart containing calculations of the play and total pool of permitholders in Broward County for state fiscal years 2006/2007 and 2007/2008.
The Division's calculations of play or total pool of permitholders in Broward County utilized live wagers, intertrack wagers,7 and simulcast export wagers.
Based on these calculations, the Division concluded that Bet Miami had the smallest play or total pool for state fiscal years 2006/2007 and 2007/2008, and, therefore, a summer jai alai permit was available in Broward County.
Based on the determinations that PPI was a qualified applicant and that a summer jai alai permit was available in Broward County for state fiscal years 2006/2007 and 2007/2008, the Division approved PPI's Application and issued the Permit to PPI.
On December 9, 2018, counsel for FSBOA sent an email to the Division, advising that Bet Miami only operated in Miami-Dade County in state fiscal year 2006/2007.
Upon reviewing its records, the Division determined that it had made an error regarding the locations at which Bet Miami had operated for the state fiscal years of 2006/2007 and 2007/2008.
The chart of play or total pool in Broward County on which the Division relied in determining there was an available summer jai alai permit in Broward County contained play or total pool calculations incorrectly attributed to Bet Miami for state fiscal year 2006/2007.
The Division revised the chart by removing the incorrectly-attributed play or total pool for state fiscal year 2006/2007, and then determined, based on the dates on and locations at which Bet Miami operated during state fiscal years 2004/2005 and 2005/2006 and the wagering types used in the Division's
7 FSBOA refers to the wagers counted toward play or total pool as "intertrack wagers as host." This is because the Division only counts intertrack wagers toward the pari-mutuel wagering pool of the track hosting the live event that is broadcast to a guest track. The Division does not agree with this terminology, but FSBOA and the Division stipulated that this type of wager was included in calculating the play or total pool of the host track only.
calculation of play or total pool, that Bet Miami had the smallest play or total pool in Broward County for state fiscal years 2004/2005 and 2005/2006.
The Division's chart reflecting play or total pool in Broward County for those years excludes pari-mutuel wagers made from or received by Bet Miami in Miami-Dade County for state fiscal years 2004/2005 and 2005/2006.8
On December 21, 2018, the Division provided a response to FSBOA's letter, acknowledging that it had erred in determining that Bet Miami had the smallest play or total pool for state fiscal years 2006/2007 and 2007/2008, but stating that upon review of its records, it was determined that Bet Miami had the smallest play or total pool for state fiscal years 2004/2005 and 2005/2006.
In state fiscal year 2004/2005, Bet Miami operated from September 1, 2004, to October 16, 2004, in Miami-Dade County; from December 1, 2004, to December 31, 2004, in Broward County; and from May 1, 2005, to May 31, 2005, in Broward County.
In state fiscal year 2005/2006, Bet Miami operated from September 1, 2005 to October 15, 2005, in Miami-Dade County; from December 1, 2005, to December 31, 2005, in Broward County; and from May 1, 2006 to May 31, 2006, in Broward County.
In state fiscal year 2006/2007, Bet Miami operated for the full fiscal year in Miami-Dade County.
When Bet Miami conducts live performances in Broward County, it leases a facility in Hollywood, Florida, where it conducts pari-mutuel pools on exhibition sports, pursuant to its authorization by the Division, under chapter 550, to conduct pari-mutuel pools in Broward County.
Bet Miami did not apply to convert permit #141 to a summer jai alai permit following state fiscal years 2004/2005 and 2005/2006.
8 As discussed in greater detail below, FSBOA asserts that it is error to exclude wagers made at, or received by, Bet Miami in Miami-Dade County from the calculation of play or total pool for the Bet Miami permit (permit #141) in this case.
Other than PPI, no other permitholders have been awarded a summer jai alai permit in Broward County for state fiscal years 2004/2005 and 2005/2006.
Summer Jai Alai Permit Availability Before Repeal of Section 550.074
Pompano Park was the owner and operator of permit #535, a pari- mutuel permit authorized to conduct pari-mutuel pools in Broward County on quarter horse racing for state fiscal years 1990/1991 and 1991/1992.
In state fiscal years 1990/1991 and 1991/1992, permit #535 had the smallest live wagering handle in Broward County.
Following state fiscal years 1990/1991 and 1991/1992, Pompano Park did not apply to convert permit #535 to a summer jai alai permit for state fiscal years 1990/1991 and 1991/1992.
If a summer jai alai permit was created due to permit #535 having the smallest play or total pool for state fiscal years 1990/1991 and 1991/1992, it was created in Broward County and was not claimed.9
Broward County had five pari-mutuel permitholders in state fiscal years 1986/1987 and 1987/1988.
Pompano Park was the owner of permit #535, a pari-mutuel permit authorized to conduct pari-mutuel pools on quarter horse racing in Broward County for state fiscal years 1986/1987 and 1987/1988.
In state fiscal years 1986/1987 and 1987/1988, permit #535 had the smallest live wagering handle in Broward County.
Following state fiscal years 1986/1987 and 1987/1988, Pompano Park did not apply to convert permit #535 to a summer jai alai permit for state fiscal years 1986/1987 and 1987/1988.
9 The parties dispute whether any summer jai alai permit that may have been made available before the repeal of section 550.074 would still exist for purposes of being available to be claimed.
If a summer jai alai permit was created due to permit #535 having the smallest play or total pool for state fiscal years 1986/1987 and 1987/1988, it was created in Broward County and was not claimed.10
Wager Types The Division Counts In Determining Play Or Total Pool
The Division includes wagers placed at the facility of a guest- permitholder in calculating the host-permitholder's play or total pool. For purposes of this case, this type of wager is referred to as intertrack wagering as a host.
The Division does not include wagers placed at the facility of a guest- permitholder toward the pool of a host-permitholder in calculating the guest- permitholder's play or total pool. For purposes of this case, this type of wager is referred to as intertrack wagering as a guest.
The Division does not include wagers placed at the facility of an in- state guest-permitholder toward the pool of an out-of-state track's live event in calculating the in-state guest-permitholder's play or total pool in Broward County. For purposes of this case, this type of wager is referred to as simulcast import.11
The Division does not include wagers placed at the facility of an in- state guest-permitholder toward the pool of an out-of-state track's live event that is being rebroadcast from another in-state permitholder's track to the in- state guest permitholder's facility in calculating the in-state guest- permitholder's play or total pool in Broward County. For purposes of this case, this type of wager is referred to simulcast intertrack as a guest or simulcast rebroadcast as guest.
The Division does not include wagers placed at the facility of an in- state guest-permitholder toward the pool of an out-of-state track's live event that is rebroadcast from another in-state host-permitholder's track to the in-
10 Refer to note 9, above.
11 This type of wager also is referred to as simulcast as guest.
state guest permitholder's facility in calculating the in-state host permitholder's play or total pool in Broward County. For purposes of this case, this type of wager is referred to simulcast intertrack as host or simulcast rebroadcast as host.
Stipulations Relating To FSBOA's Standing
PPI could run a full schedule of harness racing performances and offer pari-mutuel wagering on summer jai alai performances to patrons, and FSBOA would not suffer injury.
PPI has not submitted an application for renewal of its slot machine license indicating that PPI's summer jai alai permit is the permit to be associated with its slot machine license.
PPI has not submitted an application for renewal of its cardroom license indicating that PPI's summer jai alai permit is the permit to be associated with its cardroom license.
Stipulation To Wagering Handle Calculations
The parties stipulate to the wagering handle calculations on the chart attached as Exhibit B to the Joint Pre-hearing Stipulation. This chart has been incorporated in Finding of Fact No. 149.
Findings of Fact Based On Evidence Adduced At Final Hearing
As set forth in the stipulated findings of fact and reiterated at the final hearing, the parties have stipulated that PPI is qualified to hold a pari- mutuel permit. Accordingly, the only issue in this proceeding is whether a summer jai alai permit was made under section 550.0745(1).
At the time of the final hearing in these consolidated cases, Broward County and Miami-Dade County were the only two counties in Florida in which five or more pari-mutuel permits had been issued to permitholders within each county.
Pompano Park Pari-Mutuel Operation And Summer Jai Alai Permit Application
As stated above, Pompano Park is a pari-mutuel facility with an associated cardroom and casino, located on 220 acres of land in Pompano Beach, Broward County, Florida.
As stated above, PPI owns and operates Pompano Park, and is authorized by the Division to conduct pari-mutuel pools on exhibition sports in Broward County.
Pursuant to section 849.086(5)(a), PPI is required to conduct pari- mutuel wagering activities in order to hold a cardroom license and operate a cardroom at Pompano Park. The cardroom license must annually be renewed.
§ 849.086(5)(b), Fla. Stat.
Pursuant to section 551.104(3), PPI is required to conduct pari-mutuel wagering activities in order to hold a slot machine license and conduct slot machine gaming at Pompano Park. The slot machine license must annually be renewed. § 551.105, Fla. Stat.
As stated above, PPI owns permit #430, which authorizes it to conduct standardbred horse harness racing, and PPI also owns permit #535, which authorizes it to conduct quarter horse racing.
PPI conducts harness racing at Pompano Park 126 days per year pursuant to permit #430 and its annual licenses issued by the Division pursuant to section 550.0115.
PPI and FSBOA have entered into an agreement, currently in effect and set to expire on June 30, 2020, that establishes the mutually-agreed terms and conditions under which FSBOA's members engage in pari-mutuel harness racing at Pompano Park. Prior to expiration of the agreement, PPI and FSBOA will engage in negotiations regarding renewal of the agreement.
As stated above, on April 13, 2018, PPI filed its application with the Division, seeking issuance of a summer jai alai permit. As stated above, on or before October 26, 2018, the Division deemed the application complete and in
compliance with all pertinent statutory requirements and agency rules. The Division issued the summer jai alai permit to PPI on October 26, 2018.
Thereafter, FSBOA informed the Division, and the Division agreed, that the permitholder on which the Division had based its determination regarding smallest play or total—Bet Miami, permit #141—did not conduct pari-mutuel pools in Broward County during state fiscal year 2006/2007, so did not have the smallest play or total pool in Broward County for consecutive state fiscal years 2006/2007 and 2007/2008. Accordingly, the Division determined that a new summer jai alai permit had not been made available under section 550.0745(1) for purposes of PPI applying for, and being issued, the summer jai alai permit.
The Division corrected its calculations and, based on those corrected calculations, determined that the same permitholder in Broward County— Bet Miami, permit #141—had the smallest play or total pool in Broward County for state fiscal years 2004/2005 and 2005/2006.
Bet Miami did not apply to convert its pari-mutuel permit to a summer jai alai permit in Broward County immediately following state fiscal years 2004/2005 and 2005/2006.
Because PPI had applied for the "most recently available" summer jai alai permit in Broward County—which had been made available by Bet Miami not converting its pari-mutuel permit to a summer jai alai permit immediately following state fiscal years 2004/2005 and 2005/2006—the Division determined that PPI was entitled to issuance of the permit.
Notably, the summer jai alai permit issued to PPI does not identify any specific two-consecutive-state-fiscal-year period on which its issuance is predicated.
According to Pompano Park's vice president and general manager, Troy Buswell, PPI applied for a summer jai alai permit because it wanted to "explore all of [its] options at that point" regarding the type of pari-mutuel
activity in which it would engage in order to continue operating its cardroom and slot machine gaming facility at Pompano Park.
Buswell testified that none of the pari-mutuel activities, standing alone, actually make money for the permitholder, but acknowledged that the permitholder likely would lose less money by conducting summer jai alai, rather than horse racing, as its required pari-mutuel activity, because "it's a shorter meet . . . I don't have horses to deal with or large purses to deal with."
PPI has entered into an agreement with the Cordish Group, a developer of multi-venue hospitality developments, to prepare a redevelopment plan for Pompano Park. According to Buswell, there are different versions of the redevelopment plan that include, and, alternatively, do not include a horse racing track. According to Buswell, "we're master planning the property, so nothing is off the table."
The evidence establishes that subsequent to Buswell's testimony, David Cordish, president of the Cordish Group, presented the Pompano Park Masterplan Phase II redevelopment plan ("Redevelopment Plan") to the City Commission for the City of Pompano Beach at a public meeting. The Redevelopment Plan did not depict a horse race track as part of Pompano Park's redevelopment.12
No evidence was presented that, as of the final hearing, the City of Pompano Beach had approved the Redevelopment Plan or had granted any other approvals for the redevelopment of Pompano Park as depicted on the Redevelopment Plan.
12 Dein Spriggs, FSBOA's president, testified regarding a public meeting he attended on April 30, 2019—only six days after Buswell testified in this case—at which the Redevelopment Plan was presented to the City Commission for the City of Pompano Beach. Spriggs was not listed as a witness in FSBOA's case-in-chief; however, FSBOA presented Spriggs' testimony to impeach Buswell's testimony that "nothing [was] off the table" with respect to the inclusion of a horse race track in the Pompano Park redevelopment plans, and the testimony was admitted for that purpose. Furthermore, PPI deposed Spriggs on June 6, 2019, before he testified on June 12, 2019, so PPI was not unfairly surprised by his testimony.
Buswell testified that PPI intends to conduct harness racing and summer jai alai in state fiscal years 2019/2020 and 2020/2021.
Permit #141 Is Correctly Included In Determining Smallest Play or Total Pool In Broward County For State Fiscal Years 2004/2005 And 2005/2006
Permit #141 was issued to Biscayne Kennel Club, Inc., in Dade County, Florida, on August 11, 1931.
As discussed above, in 1996, Biscayne Kennel Club transferred permit #141 to Investment Corp. and to West Flagler, which, at the time, was doing business as Flagler Greyhound Track. At that time, Investment Corp. and West Flagler each owned a 50-percent interest in permit #141.
As discussed above, Investment Corp. subsequently was merged into Hartman and Tyner.
By 2004, West Flagler had begun doing business as Bet Miami Greyhounds, also known as "Bet Miami."
As stated above, from approximately 1996 to 2008, permit #141 was situated13 in Miami-Dade County, and was authorized by the Division to conduct pari-mutuel pools on exhibition sports in Miami-Dade County and in Broward County.
As stated above, in state fiscal years 2004/2005 and 2005/2006, Hartman and Tyner and West Flagler, doing business as Bet Miami, were the owners and operators of permit #141.14
As stated above, during state fiscal years 2004/2005 and 2005/2006, Bet Miami, permit #141, was authorized by the Division to conduct pari- mutuel pools in Broward County.
Specifically, in state fiscal years 2004/2005 and 2005/2006, Bet Miami conducted pari-mutuel pools on exhibition sports at a leased facility in
13 The term "situated" is not defined in statute or rule, and appears to be the vernacular that the parties have used in this proceeding to refer to the location of a pari-mutuel permit under section 550.054.
14 Consistent with the parties' use of terminology in this proceeding, this Final Order uses "permit #141" and "Bet Miami" interchangeably, as the context requires.
Hollywood, Broward County, Florida, pursuant to its annual licenses issued by the Division pursuant to section 550.0115. This leased facility is expressly identified in the annual licenses issued for state fiscal years 2004/2005 and 2005/2006 as the location at which Bet Miami was authorized to conduct pari-mutuel pools on greyhound racing in Broward County.
FSBOA contends that permit #141 is a "Miami-Dade County permit" that should not be considered a "Broward County permit" for purposes of comparison to other pari-mutuel permitholders conducting pari-mutuel pools in Broward County for purposes of determining smallest play or total pool in Broward County pursuant to section 550.0745(1).
As grounds for this position, FSBOA asserts because permit #141, as issued in 1931, was located in then-Dade County and has not been modified to change that location, it is a "Miami-Dade County permit" rather than a "Broward County permit." FSBOA also asserts that Bet Miami cannot be considered a Broward County permit because it leases, rather than owns, a facility in Broward County, so that its location is not "fixed" in Broward County for purposes of being a permitholder in Broward County.
The plain language of section 550.0745(1) only requires that a permitholder be "authorized by the [D]ivision to conduct pari-mutuel pools on exhibition sports" in that county to be eligible to convert to summer jai alai if it has the smallest play or total pool in that county for two consecutive state fiscal years. Such authorization to conduct pari-mutuel pools in the particular county is conferred by the annual license issued pursuant to section 550.0115.
For purposes of conducting pari-mutuel pools under section 550.0745(1), the statute does not require the permitholder's pari-mutuel permit to be "fixed" or "located" in that county, nor does it require the pari- mutuel permitholder to own, rather than lease, the facility in the county at which it is authorized to conduct pari-mutuel pools.
Here, the stipulated facts and undisputed evidence establish that permit #141 was "authorized by the [D]ivision," pursuant to annual licenses, to conduct pari-mutuel pools in Broward County during state fiscal years 2004/2005 and 2005/2006.
Accordingly, it is found that Bet Miami was "authorized to conduct pari-mutuel pools" in Broward County in state fiscal years 2004/2005 and 2005/2006 for purposes of being determined eligible to convert permit #141 to a summer jai alai permit in Broward County immediately following that qualifying two-consecutive-state-fiscal-year period.
Geographic Allocation of Wagering Handle For Permit #141
As part of its responsibilities in regulating pari-mutuel wagering in Florida, the Division keeps track of every permitholder's annual license for purposes of determining where that permitholder operated, as well as the amount of handle generated by a specific type of wager taken in by the permitholder, pursuant to its annual license, for each state fiscal year.
As stated above, from approximately 1996 to 2008, permit #141 was situated in Miami-Dade County, and was authorized by the Division to conduct pari-mutuel pools on exhibition sports in Miami-Dade County and in Broward County during those years.
As stated above, during state fiscal years 2004/2005 and 2005/2006, permit #141 was authorized by the Division to conduct pari-mutuel pools in Broward County. Specifically, pursuant to its annual operating licenses, Bet Miami was authorized to conduct, and conducted, pari-mutuel pools on exhibition sports at a leased facility in Hollywood, Broward County, during state fiscal years 2004/2005 and 2005/2006.
During state fiscal year 2004/2005, Bet Miami conducted pari-mutuel pools, pursuant to its annual operating license, in Hollywood, Broward County, between December 1 and December 31, 2004, and between May 1 and May 31, 2005.
During state fiscal year 2004/2005, Bet Miami conducted pari-mutuel pools, pursuant to its annual operating license, at Flagler in Miami-Dade County, between September 1 and October 16, 2004.
During state fiscal year 2005/2006, Bet Miami conducted pari-mutuel pools, pursuant to its annual operating license, in Hollywood, Broward County, between December 1 and December 31, 2005, and between May 1 and May 31, 2006.
During state fiscal year 2005/2006, Bet Miami conducted pari-mutuel pools, pursuant to its annual operating license, at Flagler in Miami-Dade County, between September 1 and October 15, 2005.
At no time during state fiscal years 2004/2005 and 2005/2006 was Bet Miami ever authorized to conduct, nor did it conduct, pari-mutuel pools in both Broward County and Miami-Dade County on the same dates.
Thus, Bet Miami was only authorized to conduct—and only conducted—pari-mutuel pools in Broward County on certain dates during each state fiscal year, as specified in its annual licenses for state fiscal years 2004/2005 and 2005/2006.
Likewise, Bet Miami was only authorized to conduct—and only conducted—pari-mutuel pools in Miami-Dade County on certain dates during each state fiscal year, as specified in its annual licenses for state fiscal years 2004/2005 and 2005/2006.
Stated another way, Bet Miami was not authorized by its annual licenses for state fiscal years 2004/2005 and 2005/2006 to conduct pari- mutuel pools in Miami-Dade County on the dates on which it was authorized to conduct pari-mutuel pools in Broward County.
Likewise, Bet Miami was not authorized by its annual licenses for state fiscal years 2004/2005 and 2005/2006 to conduct pari-mutuel pools in Broward County on the dates on which it was authorized to conduct pari- mutuel pools in Miami-Dade County.
Thus, permit #141 only generated pari-mutuel wagering handle from its operations in Broward County on certain dates during state fiscal years 2004/2005 and 2005/2006, as specifically authorized by its annual operating licenses for those years.
The Division generates, on a daily basis, reports for each permitholder conducting pari-mutuel pools pursuant to annual license. These reports address, among other things, the amount of handle generated by the permitholder for each specific type of wager for a particular day.
FSBOA's position that wagering handle generated by permit #141 in Miami-Dade County in state fiscal years 2004/2005 and 2005/2006 also must be included, along with the wagering handle generated by permit #141 in Broward County in those state fiscal years, for purposes of determining the smallest play or total pool in Broward County for those fiscal years, is not supported by the evidence.
Thus, it is found that the only handle that should be included in calculating the play or total pool for permit #141 in Broward County for state fiscal years 2004/2005 and 2005/2006 was the handle generated by permit #141 on pari-mutuel pools conducted in Broward County for those state fiscal years, pursuant to the annual operating licenses issued to Bet Miami for those state fiscal years.
Play or Total Pool For State Fiscal Years 2004/2005 And 2005/2006 In Broward County
The Division uses a financial record management system, the Central Management System ("CMS"), to, among other things, track wagers made at each permitted pari-mutuel facility in Florida.
The CMS creates daily totalisator—or "tote"—reports, which show, among other things, all wagers made at pari-mutuel facilities into all pari- mutuel pools. These reports enable the Division to determine the tax liability for each permitholder, and also enable the Division to keep track of the
handle15 generated by that permitholder's pari-mutuel facility, for each type of wager.
The Division reconciles each pari-mutuel facility's tote reports on a monthly basis. Each facility also remits a monthly financial report and yearly financial statement, and these submittals are reconciled with the tote reports.
In determining play or total pool pursuant to section 550.0745(1), the Division uses the tote reports to calculate the total amount of wagering handle, by each specific type of wager, that is pooled by a pari-mutuel facility in a state fiscal year.
Handle is not synonymous with the revenue generated by, or profitability of, a pari-mutuel wagering facility, and a facility's revenue is not the same as calculating its play or total pool under section 550.0745.
The term "play or total pool" is not defined in chapter 550. However, the term "pari-mutuel wagering pool" is defined, and means "the total amount wagered on a race or game for a single result." § 550.002(24), Fla. Stat. Pursuant to case law, the terms "pari-mutuel pool" and "play or total pool" are used interchangeably under section 550.0745.16
There are several different "types" of pari-mutuel wagers authorized under chapter 550, depending whether the wager is placed at the pari-mutuel facility at which the live race is conducted, or is placed at a remote pari- mutuel facility which receives or re-transmits a signal from the pari-mutuel facility at which the live race is conducted.17
15 Handle is defined as the aggregate contributions to pari-mutuel pools. § 550.002(13), Fla. Stat.
16 See West Flagler Assocs. v. Fla. Dep't of Bus. Reg., 219 So. 3d 149, 154 (Fla. 3d DCA 2017), quoting S. Fla. Racing Ass'n v. Fla. Dep't of Bus. Reg., 201 So. 3d 57, 61 (Fla. 3d DCA 2015)("[a]lthough 'total pool' is not statutorily defined, the term 'pari-mutuel wagering pool' is defined to mean 'the total amount wagered on a race or game for a single possible result'").
17 For purposes of this Final Order, references to "types" of pari-mutuel wagers refers to whether the wager is live on-track, intertrack as host, intertrack as guest, simulcast export, simulcast import, simulcast rebroadcast as host, or simulcast rebroadcast as guest. It does
Live on-track wagers are wagers placed at the permitholder's pari- mutuel facility at which the live race is conducted. In calculating a permitholder's play or total pool pursuant to section 550.0745(1), the Division counts live on-track wagers—i.e., wagers that are placed at a permitholder's facility on its own live race—toward that permitholder's total pool.18 The permitholder that conducts the live race is the host of that race.
An "intertrack wager" is a wager accepted at a pari-mutuel facility on a race that is performed live at and transmitted from another in-state pari- mutuel facility, or that is simulcast rebroadcast from another in-state facility. See § 550.002(17), Fla. Stat.
The "host track" is the track "conducting a live or simulcast race . . . that is the subject of an intertrack wager." § 550.002(16), Fla. Stat.
The "guest track" is the "track receiving or accepting an intertrack wager." § 550.002(12), Fla. Stat.
As stated above, in calculating a permitholder's play or total pool pursuant to section 550.0745(1), the Division does include, with respect to intertrack wagers, the wagers placed at the facility of an in-state guest- permitholder toward the pool of the in-state host-permitholder in calculating the in-state host-permitholder's play or total pool. For purposes of this case, this type of wager is referred to as "intertrack wager as host."19
not refer to betting odds, such as whether bets are for win-place-show, daily double, trifecta, quinella, or other odds combinations with respect to a particular bet.
18 By way of example, if Facility A conducts a live race, and a wager is placed at Facility A on that race, that wager is a "live on-track wager." That wager is counted toward the total pool of Facility A.
19 By way of example, if Facility A conducts (i.e., hosts) a live race, and a wager on that race is placed at Facility B, which has received, from Facility A, a signal transmitting the race that is being conducted live at Facility A, the wager placed at Facility B on the live race conducted at Facility A is counted toward the pool of Facility A and it is not counted toward the pool of Facility B. This is because Facility B is not authorized to conduct its own pool on the race, which is being conducted live—and the wagers are being pooled—at Facility A. This type of wager is an intertrack wager, and for purposes of pool assignment, is referred to as "intertrack wager as host" for Facility A and "intertrack wager as guest" for Facility B.
As stated above, the Division does not include, with respect to intertrack wagers, those wagers placed at the facility of an in-state guest- permitholder toward the pool of an in-state host-permitholder in calculating the in-state guest-permitholder's play or total pool. For purposes of this case, this type of wager is referred to as "intertrack wager as a guest."20
"Simulcast wagers" are wagers that are: (1) placed at an in-state pari-mutuel wagering facility on a live race conducted at that facility and broadcast to an out-of-state facility; or (2) placed at an out-of-state facility on a live race conducted at that facility and broadcast to an in-state pari-mutuel wagering facility. See § 550.002(32), Fla. Stat.
As stated above, for purposes of calculating a permitholder's play or total pool pursuant to section 550.0745(1), the Division does include, with respect to simulcast wagers, wagers placed at an out-of-state facility toward the pool of the in-state host-permitholder at whose facility the live race is conducted, in calculating the in-state host-permitholder's play or total pool.21 This type of wager is referred to as "simulcast export."22
As stated above, the Division does not include wagers placed at the facility of an in-state guest-permitholder toward the pool of an out-of-state facility's live race in calculating the in-state guest-permitholder's play or total pool. This type of wager is referred to as "simulcast import."23
20 Refer to the example in note 19.
21 By way of example, if Facility A conducts a live race, and a wager on that race is placed at Facility C, an out-of-state facility, the wager placed on the live race conducted at Facility A is counted toward the pool of Facility A, and is not counted toward the pool of Facility C. This is because Facility A is authorized to conduct pari-mutuel pools on the race, and Facility C is not authorized to conduct pari-mutuel pools on the race.
22 See West Flagler Assocs. v. Fla. Dep't of Bus. Reg., 219 So. 3d 149, 154 (Fla. 3d DCA 2017)(holding that simulcast export wagers are to be included in calculating a pari-mutuel facility's play or total pool).
23 By way of example, if Facility C, an out-of-state-facility, conducts a live race, and a wager on that race is placed at Facility A, an in-state facility, the wager placed on the live race conducted at Facility C is not counted toward the pool of Facility A. This is because Facility
As stated above, the Division does not include, with respect to simulcast rebroadcast wagers, wagers placed at the facility of an in-state guest-permitholder toward the pool of an out-of-state track's live event that is rebroadcast from another in-state host-permitholder's track to the in-state guest permitholder's facility in calculating the in-state host permitholder's play or total pool.24 For purposes of this case, this type of wager is referred to "simulcast rebroadcast as host."25
As stated above, the Division also does not include, with respect to simulcast rebroadcast wagers, those wagers that are placed at the facility of an in-state guest-permitholder toward the pool of an out-of-state track's live event that is rebroadcast from another in-state permitholder's track to the in- state guest permitholder's facility in calculating the in-state guest- permitholder's play or total pool in Broward County.26 For purposes of this case, this type of wager is referred to "simulcast rebroadcast as a guest."27
Only live on-track wagers, intertrack wagers as host, and simulcast export wagers are correctly included in calculating a permitholder's play or total pool under section 550.0745(1). The common theme for determining the permitholder's play or total pool is that, for purposes of section 550.0745(1), pari-mutuel pools are only formed at the host-permitholder's track where the
A is not authorized to conduct a pari-mutuel pool on the race that being conducted live at Facility C.
24 By way of example, if a live race is conducted at Facility C, an out-of-state facility, and is transmitted by signal to Facility A, an in-state facility, which, in turn rebroadcasts the race conducted at Facility C to Facility B, another in-state facility, and a wager is placed at Facility B on the race conducted at Facility C, the wager is not pooled at either Facility A or Facility B, because neither facility is authorized to conduct a pool on the race that is being conducted live at Facility C. For Facility A, this type of wager is a "simulcast rebroadcast as host." For Facility B, this type of wager is a "simulcast rebroadcast as guest." The key point with respect to simulcast rebroadcast wagers, as either host or guest, is that the wager placed at Facility B is not pooled either at Facility A or Facility B.
25 As stated above, this type of wager is also known as simulcast intertrack as a host.
26 Refer to the example in note 24.
27 As stated above, this type of wager also is known as simulcast intertrack as a guest.
live race is conducted, pursuant to the annual license that authorizes that permitholder to conduct pari-mutuel pools in that county.28
Conversely, intertrack wagers as guest, simulcast import wagers, simulcast rebroadcast as a host wagers, and simulcast rebroadcast as a guest wagers are not to be included in calculating a permitholder's play or total pool under section 550.0745(1). The common theme is that those wagers are placed on races that are conducted, and pools formed, at facilities that are not those of that permitholder.
Here, the parties do not dispute that permit #141 had the smallest play or total pool for state fiscal years 2004/2005 and 2005/2006 if the determination of play or total pool correctly only includes live on-track wagers, intertrack as host wagers, and simulcast export wagers.
Rather, the parties dispute, as a fundamental matter, which types of wagers are correctly included in determining a permitholder's play or total pool for purposes of section 550.0745.
Specifically, FSBOA contends that the handle of all of the different types of wagers—i.e., live on-track, intertrack as host, intertrack as guest, simulcast export, simulcast import, simulcast rebroadcast as host, and simulcast rebroadcast as guest—should be included in the calculation of play or total pool of each permitholder—both host and guest—at whose facility a wager is placed, regardless of where the race is conducted.
The basis for FSBOA's position is that in any wager, regardless of whether the track at which the wager is made is the host or the guest, both the host and guest tracks "make money" on the wager. FSBOA reasons that
28 As more fully discussed in the Conclusions of Law, the Division applies the plain language of the first sentence of section 550.0745(1) in determining that a pari-mutuel pool is formed only at the permitholder's pari-mutuel facility where the live race is conducted pursuant to annual license. Otherwise, as discussed below, wagers would be double-counted for purposes of calculating play or total pool, contrary to the statutory definition of pari-mutuel wagering pool.
because both the host and guest tracks "make money"29 on a wager regardless of the type of wager, and because one of the espoused purposes of allowing conversion to summer jai alai is to assist a struggling permitholder in staying in business by allowing it to convert to a less-costly form of pari-mutuel activity, every type of wager should be included in calculating both the host- permitholder's and guest-permitholder's play or total pool under section 550.0745(1).
Here, using FSBOA's approach to calculating play or total pool for the permitholders in Broward County for state fiscal years 2004/2005—while assuming that permit #141 is appropriately considered a "Broward County permit" for purposes of comparison with other Broward County permitholders, and including all of the different types of wagering handle generated by permit #141 at the time it was operating in Broward County— still would result in permit #141 having smallest play or total pool30 in Broward County for state fiscal year 2004/2005, even though its play or total pool would be larger than if intertrack as guest, simulcast export, and simulcast rebroadcast, wagers were excluded.
Similarly, using FSBOA's approach to calculate play or total pool for the permitholders in Broward County for state fiscal years 2005/2006—while assuming that permit #141 is appropriately considered a "Broward County permit" for purposes of comparison with other Broward County permitholders, and including all of the different types of wagering handle generated by permit #141 at the time it was operating in Broward County—
29 The amount each track makes on a wager varies depending on numerous variables, such as takeout rates, rights fees, statutory conditions on certain types of wagers, terms of agreements between host and guest tracks, amounts wagered on any given race, types of bets placed on a race, and other factors.
30 FSBOA calculated the play or total pool for permit #141 for state fiscal year 2004/2005 as
$25,664,909—approximately $3.5 million more than the Division's calculation, which excluded intertrack wagers as guest, simulcast import wagers, and simulcast rebroadcast wagers.
still would result in permit #141 having the smallest play or total pool31 in Broward County for state fiscal year 2005/2006, even though its play or total pool is larger than if intertrack as guest, simulcast export, and simulcast rebroadcast wagers were excluded.
The evidence supports the Division's approach in only including live on-track wagers, intertrack wagers as host, and simulcast export wagers in determining the permitholder's total play or pool in calculating play or total under section 550.0745. This is because if the other types of wagers were included in determining play or total pool, the handle for the various wager types would be counted at both the host and guest tracks—that is, the handle be would counted twice, or "double-counted."
Double-counting wagering handle would result in the Division substantially overestimating the amount of handle taken in by permitholders. As a result, the state would not have accurate information for purposes of assessing taxes and fees to be paid by permitholders and projecting pari-mutuel wagering revenue for use in preparing its statutorily- required annual reports regarding pari-mutuel wagering in Florida.
Further, as more fully discussed in the Conclusions of Law, counting the handle for the various wager types placed at both host and guest tracks— i.e., double-counting the handle—would conflict with the first sentence of section 550.0745(1), which provides that pari-mutuel pools are formed where the permitholder is "authorized to conduct pari-mutuel pools"—that is, where that particular race on which wagers are placed is conducted pursuant to annual license—which is where the race is conducted live.
Additionally, as more fully discussed in the Conclusions of Law, double-counting the handle for the various types of wagers would conflict with section 550.002(24), which defines "pari-mutuel wagering pool" as the
31 FSBOA calculated the play or total pool for permit #141 for state fiscal year 2005/2006 as
$23,484,380—approximately $10.6 million more than the Division's calculation, which excluded intertrack wagers as guest, simulcast import wagers, and simulcast rebroadcast wagers.
"total amount wagered on a race or game for a single possible result." Id. (emphasis added). Clearly, if wagers were counted both at the host track and also at the guest track, the amount counted toward a pari-mutuel pool would exceed the "total amount wagered on a race or game for single result."
Here, the Division determined, for each permitholder authorized to conduct pari-mutuel pools in Broward County, that permitholder's play or total pool in Broward County for state fiscal years 2004/2005 and 2005/2006.
In calculating each permitholder's play or total pool in Broward County for those state fiscal years, the Division correctly included only live on-track handle, intertrack as host handle, and simulcast export handle for the permitholder—i.e., wagers on races conducted at that permitholder's track, regardless of where the wagers were placed.
For the reasons discussed above, the Division correctly did not include, in its calculations, intertrack wagers as guest, simulcast import wagers, simulcast rebroadcast as host wagers, or simulcast rebroadcast as guest wagers for that permitholder—i.e., wagers on races not conducted at that permitholder's track.
As set forth on the chart titled "Summer Jai Alai: Created for FY 2004/2005 -2005/2006, the Bet Miami permit, permit #141, had a play or total pool of $15,053,496 for state fiscal year 2004/2005—by far the smallest play or total pool for that fiscal year.
As set forth below on the chart, below, titled "Summer Jai Alai: Created for FY 2004/2005 -2005/2006," the Bet Miami permit, permit #141, had a play or total pool of $12,451,325 for state fiscal year 2005/2006—also the smallest play or total pool for that fiscal year.
As previously stated, the parties stipulated that the numbers on the chart attached to this Final Order, and hereby incorporated into this Finding of Fact, were accurately calculated.32
32 To reiterate, although the parties do not dispute the accuracy of the actual numeric calculations themselves, they do dispute the correctness of these numbers based on the types
Based on the foregoing, it is found that permit #141 had the smallest play or total pool in Broward County for state fiscal years 2004/2005 and 2005/2006.
Summer Jai Alai Permit Availability In Broward County For State Fiscal Years 2004/2005 And 2005/2006
Because permit #141 had the smallest play or total pool in Broward County for state fiscal years 2004/2005 and 2005/2006, Bet Miami was eligible to convert its pari-mutuel permit for greyhound racing to a summer jai alai permit, pursuant to section 550.0745(1).
Bet Miami did not file an application to convert its pari-mutuel permit to a summer jai alai permit in Broward County in state fiscal year 2005/2006.33
FSBOA contends that under section 550.0745(1), even if Bet Miami had the smallest play or total pool in Broward County for state fiscal years 2004/2005 and 2005/2006, a summer jai alai permit was not made available for those two consecutive state fiscal years because Bet Miami did not "affirmatively decline" to convert its greyhound racing pari-mutuel permit to a summer jai alai permit.
In other words, FSBOA asserts that for a summer jai alai permit to be made available under the second sentence of section 550.745(1), the permitholder having the smallest play or total pool for the immediately preceding two consecutive years—here, Bet Miami—must actively notify the
of wagering handle included in calculating play or total pool, and whether wagering handle from Bet Miami's pari-mutuel operations in Miami-Dade County should be included in calculating Bet Miami's play or total pool in Broward County. As discussed above, the undersigned has determined that FSBOA's approach to calculating play or total pool is not supported by the evidence or the applicable statutes.
33 As further discussed in the Conclusions of Law, under the first sentence of section 550.0745(1), the permitholder having the smallest play or total pool for the two consecutive years "next prior"—which has been judicially interpreted to mean "immediately preceding"— may apply to the Division to convert its pari-mutuel permit to a summer jai alai permit. The "two consecutive years next prior" language effectively creates a one-year period for the permitholder who had the smallest play or total pool in the immediately-preceding two- consecutive-year period to file an application to convert.
Division that it is not going to convert its permit to a summer jai alai permit, and that only after such notification is a summer jai alai permit made available in the county.
In support of its position, FSBOA presented the testimony of David Romanik regarding the Division's purported past practice regarding "declination" by permitholders eligible to convert to summer jai alai under section 550.0745(1).
Romanik testified that in 2005, the then-chief counsel for the Division told him, in the course of a telephone conversation, that a permitholder eligible to convert to summer jai alai "had to decline" in order for a summer jai alai permit to be made available. He also testified that the Division sent, to a permitholder eligible to convert to summer jai alai, a letter giving that permitholder "30 days in which to convert their quarter horse permit into a summer jai alai permit, or else it would be deemed declined." Romanik also testified that he sent a letter to the Division on behalf of a permitholder, "affirmatively declining" to convert that permitholder's pari- mutuel permit to summer jai alai.
This anecdotal evidence (which, in part, also is uncorroborated hearsay) is insufficient to establish that the Division ever had a formal practice, policy, or requirement under which an eligible permitholder had to "affirmatively" notify the Division that it was declining to convert its permit to summer jai alai in order for a new summer jai alai permit to be made available pursuant to the second sentence of section 550.0745(1).
Based on the evidence, and for the reasons more fully discussed in the Conclusions of Law, it is determined that an "affirmative declination" by a permitholder eligible to convert to summer jai alai is not required for a new summer jai alai permit to be made available pursuant to the second sentence of section 550.0745(1).
Furthermore, even if an "affirmative declination" were required, the evidence shows that Bet Miami filed an application, and was granted an
annual license, to conduct greyhound racing in the year following state fiscal years 2004/2005 and 2005/2006—thereby actively notifying the Division that it did not intend to convert its greyhound racing permit to a summer jai alai permit. Therefore, in any event, Bet Miami did "affirmatively decline" to convert its pari-mutuel permit to a summer jai alai permit in those state fiscal years.
Because Bet Miami declined to convert its greyhound racing permit to a summer jai alai permit, a new summer jai alai permit was made available in Broward County for state fiscal years 2004/2005 and 2005/2006.
FSBOA also contends that the statute of limitation in section 95.11(3)(p), Florida Statutes, applies to extinguish, after four years, any summer jai alai permits that historically were made available pursuant to the second sentence of section 550.0745(1).
Thus, FSBOA contends, even if a summer jai alai permit was made available for state fiscal years 2004/2005 and 2005/2006, that permit was extinguished by operation of law after four years, so was not available for issuance to PPI.
For the reasons addressed in the Conclusions of Law, it is determined that the statute of limitation set forth in section 95.11(3)(p) does not apply to the creation of new summer jai alai permits under the second sentence of section 550.0745(1).
Accordingly, it is determined that a summer jai alai permit was made available following state fiscal years 2004/2005 and 2005/2006, and was in existence in 2018, when PPI filed its application for issuance of a summer jai alai permit.
FSBOA's Standing
As discussed above, FSBOA is the statewide trade association created for the broad purpose of promoting the standardbred horse breeding industry and harness racing in Florida and around the country. It represents the interests of the majority of the standardbred breeders, owners, trainers, and
drivers of harness racing horses in all aspects of the Florida standardbred horse industry.
FSBOA has over 300 members, all of whom are engaged in the standardbred horse industry in Florida, and approximately 100 of whom also engage in standardbred horse racing-related activities out of state.
FSBOA represents the majority of the standardbred breeders, owners, trainers, and drivers of standardbred horses engaged in standardbred harness racing as a licensed pari-mutuel activity at Pompano Park.
As found above, PPI is the owner of Pompano Park, a pari-mutuel facility that operates an associated cardroom and casino pursuant to annual licenses.
As found above, PPI is required by law to conduct licensed pari- mutuel wagering activities as a condition of holding its cardroom and slot machine licenses and operating a cardroom and slot machine gaming at Pompano Park. Those licenses must be annually renewed.
Currently, PPI conducts harness racing at Pompano Park pursuant to pari-mutuel permit #430 and its annual license, as its legally-required pari-mutuel wagering activity in order to hold its cardroom and slot machine licenses and operate a cardroom and slot machine gaming.
Pompano Park is the only pari-mutuel facility in Florida at which standardbred harness racing is conducted as a pari-mutuel activity.
PPI and FSBOA have entered into an agreement addressing, among other things, the provision of insurance covering drivers, trainers, and sulkies engaged in harness racing at Pompano Park; the payment of purses from pari-mutuel activities and cardroom operations at Pompano Park; and the payment, to FSBOA's members participating in harness racing at Pompano Park, of non-statutory purse enhancements from slot machine gaming. The term of the Agreement commenced on October 24, 2017, is effective for three racing seasons, and ends on June 20, 2020. The third-year
racing season under the Agreement commenced on July 1, 2019, and ends on June 30, 2020.
The Agreement provides that PPI and FSBOA must "agree to meet to discuss either extending the term of this Agreement or entering into a new Agreement for a contract of a minimum of three racing seasons no later than January 1 of 2020." The parties presented evidence that they intend to perform this term of the Agreement.
PPI also holds pari-mutuel permit #535, which authorizes it to conduct quarter horse racing as a pari-mutuel wagering activity at Pompano Park. Currently, PPI does not conduct quarter horse racing at Pompano Park.
As stated above, PPI has applied for a summer jai alai permit to authorize it to conduct summer jai alai as a pari-mutuel wagering activity at Pompano Park. That permit is the subject of this proceeding.
In order for PPI to conduct summer jai alai as its legally-required pari-mutuel activity in connection with its cardroom and slot machine licenses at Pompano Park, those licenses must be changed, either through modification or at annual renewal, to identify summer jai alai as the pari- mutuel wagering activity conducted in connection with those licenses.
Florida Administrative Code Rule 61D-11.008(1)(b) governs renewal of cardroom licenses. The cardroom license renewal requirements entail paying a $500 license fee and completing Form DBPR PMW-3135, a business occupational license renewal form, which requires the renewing licensee to provide updated information regarding the business name, address, and telephone number; whether the connected pari-mutuel wagering license has been revoked, suspended, or voluntarily relinquished in lieu of prosecution; whether there are any pending disciplinary or enforcement actions against the business or its owner; and whether the business entity has been convicted of a crime.
Rule 61D-14.003 governs renewal of slot machine licenses. The slot machine license renewal requirements entail paying an annual license fee
and a compulsive or addictive gambling prevention regulatory fee, and completing Form DBPR PMW-3405, which requires the renewing licensee to provide updated information regarding the business name, address, and telephone number; changes to the officers, directors, and shareholders of the business; whether the connected pari-mutuel wagering license has been revoked, suspended, or voluntarily relinquished in lieu of prosecution; whether there are any pending disciplinary or enforcement actions against the business or its owner; and whether the business entity has been convicted of a crime.
As of the final hearing date, PPI had not filed cardroom or slot machine license renewal applications identifying the summer jai permit at issue in this proceeding as the pari-mutuel permit to be associated with its cardroom and slot machine licenses.
Cardroom and slot machine licenses are renewed if the pertinent fees are paid and informational requirements are met. The rules make clear that the cardroom and slot machine license renewal is ministerial and does not involve discretionary decision-making by the Division in determining whether the licensee is entitled to renewal of either license.
The parties stipulated that if PPI were to conduct pari-mutuel wagering on a full season schedule of harness racing performances and were also to conduct pari-mutuel wagering on summer jai alai performances, FSBOA's members would not suffer injury. The evidence establishes that summer jai alai would be conducted during the summer months pursuant to section 550.0745, and harness horse racing would be conducted during the fall and winter, so the performances of these two pari-mutuel activities would not overlap or compete with each other.
As found above, PPI is evaluating its redevelopment options for Pompano Park. In early 2019, PPI's developer, the Cordish Group, presented a Redevelopment Plan to the City of Pompano Beach that did not depict a horse racing track as part of the redeveloped facility.
As found above, PPI's manager acknowledged that, in conducting the required pari-mutuel activity, summer jai alai would likely result in PPI losing less money than horse racing.
FSBOA has challenged issuance of the summer jai alai permit to PPI because it fears that if PPI is authorized to conduct summer jai alai, it will cease conducting harness horse racing as its required pari-mutuel activity at Pompano Park.
Because Pompano Park is the only pari-mutuel facility in Florida at which harness racing is conducted as a pari-mutuel activity, if PPI ceases conducting harness horse racing as its pari-mutuel activity at Pompano Park, a substantial number, if not all, of FSBOA's members will lose their jobs and income, and no longer would have pari-mutuel harness horse racing opportunities in Florida. This would result in substantial loss of jobs, income, and, potentially, livelihood, for FSBOA's members engaged in pari-mutuel harness racing in Florida.
FSBOA also contends that it, as an entity, also would be injured if PPI ceases harness racing at Pompano Park because the revenue from pari- mutuel harness racing at Pompano Park is FSBOA's only revenue source. In that scenario, FSBOA would be unable to pay breeders' awards, owners' awards, stallions' awards, and other purses and prizes, as required by section 550.2625(4).
As evidence that these alleged injuries reasonably could result from issuance of the summer jai alai permit to PPI, FSBOA relies on Buswell's testimony regarding the greater cost-effectiveness of summer jai alai as compared to horse racing; a recently-issued declaratory statement determining that another similarly-situated pari-mutuel permitholder is legally entitled to substitute summer jai alai for horse racing as its permitted pari-mutuel activity; and the Pompano Park Redevelopment Plan presented to the City of Pompano Beach that did not show a horse racing track as part of the redevelopment.
Based on this evidence, it is found that the injuries that FSBOA alleges to its members' substantial interests, and to its own substantial interests as an entity, are not speculative and reasonably can be expected to occur as a result of issuance of the summer jai alai permit to PPI.
Notification Letter To The Division Regarding Alleged Unadopted Rules
FSBOA sent a letter to the Division, dated December 5, 2018, identifying the alleged agency statements that FSBOA contends are unadopted rules, and notifying the Division that the letter constituted the 30- day notification required by section 120.595(4), and that FSBOA would file an unadopted rule challenge regarding the alleged agency statements unless the Division initiated rulemaking pursuant to section 120.54.
CONCLUSIONS OF LAW
DOAH has jurisdiction over the parties to, and the subject matter of, this proceeding. §§ 120.56(4), 120.569, 120.57(1), Fla. Stat.
Burden And Standard of Proof
FSBOA contends that the Division's proposed agency action to issue the summer jai alai permit to PPI is based on one or more alleged agency statements that constitute unadopted rules. FSBOA has challenged these alleged unadopted rules pursuant to section 120.56(4).34
FSBOA has the burden to show, by a preponderance of the evidence, that the alleged agency statements it has identified in its Rule Challenge Petition are unadopted rules. § 120.56(4)(a), Fla. Stat.; see Ag. for Pers. with Disab. v. C.B., 130 So. 3d 713, 717 (Fla. 1st DCA 2013); S.W. Fla. Water Mgmt. Dist. v. Charlotte Cty., 774 So. 2d 903, 908 (Fla. 2d DCA 2001).
34 FSBOA challenged these unadopted rules as applied in Case No. 18-6339. A separate Recommended Order has been issued in that case.
Unadopted Rule Challenge Under Section 120.56(4)
Section 120.54(1)(a) states, in pertinent part: "[r]ulemaking is not a matter of agency discretion. Each agency statement defined as a rule by s.
120.52 shall be adopted by the rulemaking procedure provided by this section as soon as feasible and practicable."
Section 120.56(4), which governs challenges to agency statements defined as unadopted rules, states, in pertinent part:
Any person substantially affected by an agency statement that is an unadopted rule may seek an administrative determination that the statement violates s. 120.54(1)(a). The petition shall include the text of the statement or a description of the statement and shall state facts sufficient to show that the statement constitutes an unadopted rule.
* * *
If a hearing is held and the petitioner proves the allegations of the petition, the agency shall have the burden of proving that rulemaking is not feasible or not practicable under s. 120.54(1)(a).
The administrative law judge may determine whether all or part of a statement violates s. 120.54(1)(a). The decision of the administrative law judge shall constitute a final order.
* * *
If an administrative law judge enters a final order that all or part of an unadopted rule violates
s. 120.54(1)(a), the agency must immediately discontinue all reliance upon the unadopted rule or any substantially similar statement as a basis for agency action.
A "rule" is defined, in pertinent part, as "each agency statement that implements, interprets, or prescribes law or policy or describes the procedure or practice requirements of an agency." § 120.52(16), Fla. Stat.
An "unadopted rule" is defined as "an agency statement that meets the definition of the term 'rule,' but that has not been adopted pursuant to the requirements of [section] 120.54." § 120.52(20), Fla. Stat.
A statement of general applicability is a statement that purports to affect not just a single person or in singular situations, but a category or class of similarly-situated persons or activities. McCarthy v. Dep't of Ins., 479 So. 2d 135, 137 (Fla. 1st DCA 1985).
Because the definition of "rule" expressly includes statements that implement or interpret law, an agency's interpretation of a statute that gives the statute meaning not readily apparent from its literal reading and purports to create rights, require compliance, or otherwise have the direct and consistent effect of law is a rule. State Bd. of Admin. v. Huberty, 46 So. 3d 1144, 1147 (Fla. 1st DCA 2010).
Conversely, "an agency interpretation of a statute which simply reiterates the legislature's statutory mandate, and does not place upon the statute an interpretation that is not apparent from its literal reading . . . is not an unpromulgated rule, and actions based on such an interpretation are permissible without requiring the agency to go through rulemaking." Amerisure Mut. Ins. Co. v. Dep't of Fin. Servs., 156 So. 3d 520, 532 (Fla. 1st DCA 2015). Thus, if an agency statement "merely reiterates a law, or declares what is readily apparent from the text of the law . . . the statement is not considered a rule." Grabba-Leaf, LLC v. Dep't of Bus. & Prof'l Reg., 257 So. 3d 1205, 1207 (Fla. 1st DCA 2018).
In cases involving or implicating statutory construction, the "law" is comprised of both the statute itself and the case law interpreting that statute. In State v. Barnum, 921 So. 26 513 (Fla. 2005), the court instructed that "in cases of statutory construction, 'the law' is comprised of the statute
plus decisional case law interpreting that statute." Id. at 521. Further to that point, in Mikolsky v. Unemployment Appeals Commission, 721 So. 2d 738 (Fla. 5th DCA 1998), the court directed that state agencies "must follow the interpretations of statutes as interpreted by the courts of this state." Id. at 739.
Thus, when a state agency applies judicial case law to determine substantial interests, the agency itself has not formulated or applied an agency statement of general applicability that implements, interprets, or prescribes law or policy; rather, it has merely followed and applied the interpretive judicial case law principles to the facts of the particular case, as it is required to do. See id.
As discussed below, in determining that a summer jai alai permit was made available in Broward County for state fiscal years 2004/2005 and 2005/2006, the Division applied each applicable statute's plain language and, as applicable, the case law interpreting section 550.0745(1). Thus, the Division itself did not give any statute pertinent to this proceeding any independent meaning that is not readily apparent from the statute's literal reading, or is not an application of judicial case law. Rather, the Division applied the plain language of the applicable statutes and, as pertinent, the interpretive judicial case law principles, in determining each issue in this summer jai alai permitting proceeding.
Thus, for the reasons discussed below, it is concluded that the Division did not formulate or apply any unadopted rules in determining any issues in this proceeding, including the ultimate issue that a summer jai alai permit was created for state fiscal years 2004/2005 and 2005/2006 by virtue of permit #141 having the smallest play or total pool in Broward County for those two consecutive state fiscal years.
Applicable Provisions of Chapter 550
Section 550.0745 governs the conversion of pari-mutuel permits for other types of pari-mutuel activities, such as greyhound racing, thoroughbred horse racing, quarter horse racing, and standardbred harness racing, to summer jai alai permits.
The statute states, in pertinent part:
(1) 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 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.
In West Flagler Associates, Ltd v. Department of Business and Professional Regulation, 139 So. 3d 419 (Fla. 1st DCA 2014), the court instructed that the phrase "next prior" in the statute means "immediately prior." Thus, if a pari-mutuel permitholder who is eligible to convert to summer jai alai due to having the lowest play or total pool in the county for the immediately prior two-consecutive-year period does not convert, then a "new summer jai alai permit is hereby made available in that permittee's county to conduct summer jai alai games." W. Flagler Assocs. v. Dep't of Bus. & Prof'l Reg., 216 So. 3d 692, 695 (Fla. 1st DCA 2017).
Pursuant to the first sentence of section 550.0745(1), the permitholder having the smallest play or total pool for the immediately-prior two-consecutive-year-period has a one-year period in which to file an application to convert its pari-mutuel permit to a summer jai alai permit. If that permitholder does not convert its permit to a summer jai alai permit, then a new summer jai alai permit is made available for which other permitholders in the county may apply. W. Flagler Assocs., 139 So. 3d at 422.
Section 550.002 also defines key terms applicable to this proceeding.
As stated above, "pari-mutuel wagering pool" is defined as the "total amount wagered on a race or game for a single possible result." § 550.002(24), Fla. Stat.
As stated above, "handle" is defined as the "aggregate contributions to pari-mutuel pools." § 550.002(13), Fla. Stat.
"Intertrack wager" is defined as "a particular form of pari-mutuel wagering in which wagers are accepted at a permitted, in-state track, fronton, or pari-mutuel facility on a race or game transmitted from and performed live at, or simulcast rebroadcast from, another in-state pari- mutuel facility." § 550.002(17), Fla. Stat.
"Simulcasting" means:
broadcasting events occurring live at an in-state location to an out-of-state location, or receiving at an in-state location events occurring live at an out- of-state location, by the transmittal, retransmittal, reception, and rebroadcast of television or radio signals by wire, cable, satellite, microwave, or other electrical and electronic means for receiving or rebroadcasting the events.
§ 550.002(32), Fla. Stat.
Permit #141 Is A Broward County Permit For Purposes of Determining Smallest Play Or Total Pool In Broward County
FSBOA contends that permit #141 should not be considered a Broward County permitholder for purposes of determining smallest play or total pool because it originally was issued for a pari-mutuel facility located in Dade County and only leases a facility in Broward County.
FSBOA's position is not supported by the plain language of section 550.0745(1), which only requires a to permitholder be "authorized by the [D]ivision to conduct pari-mutuel pools on exhibition sports" in that county to be included for purposes of determining the play or total pool for two consecutive state fiscal years in that county. As discussed above, such authorization is conferred by the annual license to conduct pari-mutuel pools in that county, pursuant to the specific dates and location specified in the annual license. Section 550.0745(1), by its plain terms, does not require, for purposes of being a permitholder in that county, that the permitholder's pari- mutuel permit be "fixed" in that county, that the licensed permitholder's activities be limited or exclusive to the county, or that a pari-mutuel permitholder own, rather than lease, the facility in the county in which it is authorized to conduct pari-mutuel wagering pools.
In fact, section 550.475 expressly recognizes that pari-mutuel permitholders may lease facilities for purposes of conducting pari-mutuel activities. That statute states:
Holders of valid pari-mutuel permits for the conduct of any jai alai games, dogracing, or thoroughbred and standardbred horse racing in this state are entitled to lease any and all of their facilities to any other holder of a same class valid pari-mutuel permit for jai alai games, dogracing, or thoroughbred or standardbred horse racing, when located within a 35-mile radius of each other; and such lessee is entitled to a permit and license to operate its race meet or jai alai games at the leased premises.
§ 550.475, Fla. Stat. (emphasis added).
Section 550.475 makes clear that not only are pari-mutuel permitholders allowed to lease other permitholders' facilities, provided that the "like-kind" and distance limitations are met, but also that permitholders leasing another permitholder's facility are entitled to a permit and license to operate at that facility.
For these reasons, it is concluded that FSBOA's position is not supported by the plain language of sections 550.0745 or 550.475.
Summersport Enterprises v. Pari-mutuel Commission, 493 So. 2d 1085 (Fla. 3d DCA 1986), supports the conclusion that permit #141 is a Broward County permit for purposes of section 550.0745. In Summersport, the Division issued a pari-mutuel permit to conduct quarter horse racing to Gator Downs, a permitholder whose pari-mutuel facility was located in St. Johns County. After the permit was issued, Gator Downs was authorized by annual license to conduct races in both St. Johns County and Broward County. Thereafter, for several years, Gator Downs only conducted races in Broward County pursuant to its annual licenses. Subsequently, Gator Downs became eligible to convert, and converted, its pari-mutuel permit under which it conducted quarter horse racing in Broward County to a summer jai alai permit in Broward County. In denying Summersport's request to conduct matinee and night performances in Broward County under its summer jai alai permit (because it had not been authorized to conduct matinee performances prior to its conversion), the court observed that the Gator Downs quarter horse racing pari-mutuel permit "must be considered a Broward County permit in order for it to have been eligible for conversion under the language of section 550.074, Florida Statutes." Id. at 1088 (emphasis added).
Similar to the circumstances in Summersport, here, Bet Miami also originally was authorized to conduct pari-mutuel activities in another county and subsequently was authorized by annual license to conduct pari-mutuel
activities in Broward County. Consistent with the court's determination in Summersport that Gator Downs was a "Broward County permit" for purposes of being eligible to convert its pari-mutuel permit to a summer jai alai permit, so too, must permit #141 be considered a "Broward County permit" for purposes of being determined to have the smallest play or total pool in Broward County, and thus, eligible to convert its pari-mutuel permit to a summer jai alai permit in Broward County.
FSBOA also relies on the Final Declaratory Judgment rendered in Gulfstream Park Racing Association, Inc. v. Hartman and Tyner, Inc., Case No. 2008-CA-2129,35 to support its position that permit #141 is a "Miami- Dade County permit" rather than a "Broward County permit" for purposes of determining smallest play or total pool in Broward County under section 550.0745(1). Specifically, FSBOA quotes language at the end of the court's order stating that "the BET Miami pari-mutuel permit is a Miami-Dade County permit."
FSBOA cites this language completely out of context. At issue in Gulfstream Park was whether, by leasing Hartman and Tyner's facility in Broward County at which Bet Miami conducted greyhound racing, permit #141 had been "relocated" to Broward County in violation of section 550.0555. That statute allows a greyhound racing pari-mutuel permit to be relocated without the requirement to hold a country referendum only if certain conditions are met—one of which is that the permit cannot be moved across the county border. In Gulfstream Park, no county referendum was held before Bet Miami leased the facility to conduct greyhound racing in Broward County.
The court in Gulfstream Park rejected the argument that permit #141 had been "relocated" to Broward County in violation of section 550.0555, and instead found that permit #141 was operating in Broward County in
conformance with section 550.475, which expressly authorizes pari-mutuel permitholders to lease their facilities to other pari-mutuel permitholders, provided that the permits held by the lessor and lessee are a "same class valid pari-mutuel permit" and the facilities are located within a 35-mile radius of each other. Under these circumstances, the court concluded that the Bet Miami permit remained a Miami-Dade County permit and that Bet Miami's lease of the facility in Broward County did not constitute a "relocation" for which a referendum was required. In context, it is clear that the court's language that "the Bet Miami pari-mutuel permit is a Miami- Dade County permit" was limited to the specific question at hand—i.e., whether permit #141 had been relocated to Broward County in violation of section 550.0555. The court determined that, for purposes of section 550.0555, permit #141 had not been relocated to Broward County in violation of that statute. Thus, the court's order in Gulfstream Park does not apply in this case to render permit #141 a "Miami-Dade County permit," or to affect Bet Miami's ability to conduct pari-mutuel pools in Broward County under its annual license, for purposes of section 550.0745.
Based on the foregoing, it is concluded that Bet Miami is a "Broward County permit" for purposes of section 550.0745. Therefore, the Division correctly included Bet Miami's play or total pool in Broward County for purposes of determining the smallest play or total pool in Broward County for state fiscal years 2004/2005 and 2005/2006.
35 The Final Declaratory Judgment in Gulfstream Park Racing Association, Inc. v. Hartman and Tyner, Inc., Case No. 2008-CA-2129, was issued by the Circuit Court in and for the Second Judicial Circuit, Leon County, Florida, on March 15, 2010.
The Wagering Handle For Permit #141 From Its Miami-Dade County Operations Should Not Be Included In Determining Play Or Total Pool For Permit #141 In Broward County
FSBOA contends that the handle generated by permit #141 through conducting pari-mutuel pools in Miami-Dade County must be included, along with the handle generated by permit #141 through conducting pari-mutuel pools in Broward County, in determining the play or total pool for permit #141 in Broward County for state fiscal years 2004/2005 and 2005/2006.
As found above, although Bet Miami was authorized by annual operating licenses to conduct pari-mutuel pools on exhibition sports in both Broward County and Miami-Dade County in state fiscal years 2004/2005 and 2005/2006, at no time during these state fiscal years was Bet Miami ever authorized to conduct, nor did it conduct, pari-mutuel pools in both Broward County and Miami-Dade County on the same dates.
Therefore, as found above, during state fiscal years 2004/2005 and 2005/2006, permit #141 only generated pari-mutuel wagering handle in Broward County on the dates on which it was specifically authorized by its annual operating licenses to conduct pari-mutuel pools in Broward County during those state fiscal years.
FSBOA's position is not supported by the plain language of section 550.0745(1). The first sentence of section 550.0745(1) 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[36] and whose mutuel play from the operation of such pari-mutuel pools for the 2 consecutive years next prior to filing
36 The clause "in any county having five or more such pari-mutuel permits" describes the universe of counties to which section 550.0745 applies—currently, only Broward County and Miami-Dade County. This clause does not define the location of the permitholder's pari- mutuel pool, which, as discussed below, is established pursuant to section 550.0745(1) and the annual license issued pursuant to section 550.0115 authorizing the permitholder to conduct pari-mutuel pools at specific locations on specific dates.
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[.]
§ 550.0745(1), Fla. Stat. (emphasis added).
The phrase "within the county" refers to the county in which the permitholder is authorized to conduct pari-mutuel pools. As previously discussed, authorization to conduct pari-mutuel pools is granted through issuance, pursuant to section 550.0115, of an annual license. Thus, the location of the permitholder's pari-mutuel pool is determined by the annual license, which specifies the dates on, and locations at which, the pari-mutuel pools are authorized to be conducted.
Under section 550.0745(1), if the permitholder has had the smallest play or total pool within the county in which it is authorized by annual license to conduct pari-mutuel pools, then it may apply to convert its permit to a summer jai alai permit within "such county." The phrase "such county" refers to the county in which the permitholder is authorized to conduct pari- mutuel pools pursuant to its annual license.
As discussed, Bet Miami was authorized by annual license to conduct pari-mutuel pools in Broward County on specified dates. It was not authorized to conduct pari-mutuel pools in Miami-Dade County on any of the dates on which it was authorized to conduct pari-mutuel pools in Broward County.
Thus, for purposes of determining the play or total pool for permit #141 in Broward County, counting handle generated by a facility located outside of Broward County on dates on which permit #141 was not authorized to conduct pari-mutuel pools in Broward County, would contravene the plain language of section 550.0745(1).
Further, if the statute were read to require, for purposes of determining play or total pool "within the county," the inclusion of all handle
generated by a permit in all counties in which the permitholder conducted pari-mutuel pools, that would effectively eliminate the statutory per-county basis by which permitholders are compared with each other for purposes of determining which had the smallest play or total pool in "such county." Thus, FSBOA's reading of section 550.0745(1) is directly contradicted by South Florida Racing Association v. Department of Business and Professional Regulation, 201 So. 3d 57, 61 (Fla. 3d DCA 2015), which held that the phrase "within the county" defines the universe of pari-mutuel permitholders within the particular county in which they are authorized to operate pari-mutuel pools, for purposes of comparison to determine which permitholder had the smallest play or total pool in that county for the state fiscal year. See also Summersport, 493 So. 2d at 1087 (the summer jai alai permit conversion statute is "based upon a county concept").37
For these reasons, FSBOA's position is rejected, and it is concluded that only the handle generated by permit #141 pursuant to its annual licenses authorizing it to conduct pari-mutuel pools in Broward County during state fiscal years 2004/2005 and 2005/2006 should be included in determining the play or total pool for permit #141 in Broward County for those state fiscal years.
Types of Wagers Included In Determining Play Or Total Pool
As noted above, the term "pari-mutuel wagering pool" means the "total amount wagered on a race or game for a single possible result." § 550.002(24), Fla. Stat. Also as noted above, case law holds that the terms "total pool" and "pari-mutuel wagering pool" are used interchangeably in chapter 550 in discussing the full amount wagered on a particular type of event. S. Fla. Racing, 201 3d at 61 ("the term 'total pool' seems to refer to all monies wagered[;] although 'total pool' is not statutorily defined, the term
37 Similarly, if Bet Miami's Miami-Dade county racing facility were determined to have the smallest play or total pool for two consecutive state fiscal years, that would not serve to allow conversion of the Broward County license to a summer jai alai permit.
'pari-mutuel wagering pool' is defined to mean the 'total amount wagered on a race or game for a single possible result").
Section 550.0745(1) does not expressly specify the types of pari- mutuel wagers handle that are to be included in calculating a permitholder's play or total pool. However, to date, cases interpreting section 550.0745 collectively have held that three types of pari-mutuel wagers are included in determining a permitholders' play or total pool under section 550.0745.
In South Florida Racing, the court determined that, in addition to live on-track wager wagers, intertrack wagers also must be included in calculating the play or total pool of a permitholder conducting pari-mutuel pools within a county, for purposes of determining which permitholder in such county had the smallest play or total pool within that county pursuant to section 550.0745(1). Id. at 61.
Subsequently, in West Flagler Associates v. Department of Business and Professional Regulation, 219 So. 3d 149, 155 (Fla. 3d DCA 2017), the court held that simulcast export wagers also must be included in calculating the play or total pool of the permitholder conducting pari-mutuel pools within a county, for purposes of determining which permitholder had the smallest play or total pool in that county. The court reasoned:
We can discern nothing in the language of the statute which would require, for the purpose of calculating the smallest play or total pool under section 550.0745(1), drawing a distinction between intertrack wagers and simulcast export wagers. As this court recognized in South Florida Racing, 201 So. 3d at 61, "[a]lthough 'total pool' is not statutorily defined, the term 'pari-mutuel wagering pool' is defined to mean 'the total amount wagered on a race or game for a single possible result,'" and "[n]othing in Chapter 550 of the Florida Statutes limits the total pool to solely physical in-county wagers." Id. Our determination in the instant case—that the statutory language includes simulcast export wagers—is consistent with our analysis in South Florida Racing, and the contrary
construction proposed by West Flagler would conflict with the plain meaning of section 550.0745(1).
Id. at 154.
The salient commonality between the three types of wagers that courts have determined are included in calculating a permitholder's play or total pool is that the handle for each of these types of wagers is pooled at the host facility conducting the live race. Thus, regardless of where the wagers on the live race are placed—whether at the facility conducting the live event; at an in-state facility at which wagers are remotely placed on a live race conducted at another facility (intertrack wagering); or at an out-of-state facility at which wagers are remotely placed on a live race conducted at a Florida facility (simulcast export)—these wagers, for purposes of section 550.0745(1), are always pooled at the facility at which the live event is conducted.
Only counting the handle from these types of wagers in determining the "play or total pool" of the facility at which the live event is conducted is consistent with section 550.002(24), which defines "pari-mutuel wagering pool" as the "total amount wagered on a race or game for a single possible result."
FSBOA asserts that, in addition to live on-track wagers, intertrack wagers, and simulcast export wagers, handle from intertrack wagers as guest, simulcast import wagers, and simulcast rebroadcast wagers, each of which involve wagers placed and pooled at remote facilities—also must be included in calculating the play or total pool of the guest-permitholder, for purposes of determining which permitholder had the smallest play or total pool within that county pursuant to section 550.0745(1). No Florida court has yet ruled on whether the handle from intertrack wagers as guest, simulcast import wagers, and simulcast rebroadcast wagers also must be included in
determining the play or total pool of a guest-permitholder under section 550.0745(1). Thus, FSBOA raises issues of first impression in this case.
As found above, if the handle for intertrack wagers as guest, simulcast import wagers, and simulcast rebroadcast as host or guest wagers were—in addition to being counted toward the pool of the permitholder conducting the live race (i.e., the host)—also were counted toward the pool of the guest facility at which wagers are placed remotely on races occurring live at another facility, the total amount of handle wagered on that race would be counted twice. As discussed above, this would result in more than the "total amount wagered on a race or game for a single possible result" being counted toward a pari-mutuel pool, in clear conflict with the definition of "pari-mutuel wagering pool" in section 550.002(24).
As found above, this is because all wagers on a live event-— regardless of where those wagers are placed—are only counted toward the pool of the permitholder at whose facility the live event is conducted—i.e., the host permitholder. The definition of "pari-mutuel wagering pool" does not contemplate or authorize the double-counting of wagers for purposes of forming a pari-mutuel pool.
Accordingly, it is concluded that the only types of wagers that are correctly included in determining a permitholder's play or total pool for purposes of section 550.0745(1) are live on-track wagers, intertrack wagers, and simulcast export wagers.
Therefore, it is concluded that intertrack wagers as guest, simulcast import wagers, and simulcast rebroadcast as host or guest wagers are not correctly included in calculating total play or pool for purposes of section 550.0745(1).
"Affirmative" Declination Not Required To Create New Summer Permit
FSBOA asserts that a permitholder eligible to convert its pari-mutuel permit to a summer jai alai permit pursuant to the first sentence of section 550.0745(1) must "affirmatively" notify the Division that it is declining to
convert, and that only after such " affirmative declination" has been provided is a summer jai permit made available pursuant to the second sentence of section 550.0745(1). In this vein, FSBOA asserts that Bet Miami did not affirmatively notify the Division that it was declining to convert its greyhound racing permit to a summer jai alai permit following fiscal years 2004/2005 and 2005/2006, so that a summer jai alai permit was not made available under the second sentence of section 550.0745(1) for those state fiscal years for which PPI could apply.
The plain language of section 550.0745(1) does not support FSBOA's position. The first sentence of section 550.0745(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 . . . .
§ 550.0745(1), Fla. Stat. (emphasis added).
This language makes clear that in order for an eligible permitholder to convert its permit to a summer jai alai permit, it must apply to the Division—i.e., file an application—to do so. Thus, the conversion to summer jai alai under the first sentence of section 550.0745(1) is not automatic; it requires the eligible permitholder to take the affirmative act of applying for the summer jai alai permit.
The second sentence of section 550.0745(1) states, in pertinent part: "[i]f a permittee who is eligible to convert under this section to convert a permit declines to convert, a new permit is hereby made available in that permittee's county " As discussed above, because converting to summer
jai alai is not automatic and requires a permittee to apply to convert, it would
be nonsensical to read "declines to convert" in the second sentence as also requiring the permitholder to affirmatively notify the Division that it is not going to apply to convert its permit to summer jai alai in order for a new summer jai alai permit to be made available. Thus, the clause "declines to convert" must be read to mean only that the permittee does not file an application to convert. In other words, "declining to convert" is the effective "default" when a permitholder does not file an application to convert.
The court's statement in West Flagler Associates v. Department of Business & Professional Regulation, 139 So. 3d 419 (Fla. 1st DCA 2014), underscores this point. The court noted that "the statute plainly provides that the permitholder with the lowest handle for 'the two consecutive years next prior to filing an application' may apply for a summer jai alai permit and, if it declines to do so, a new summer jai alai permit is made available." Id. at 422 (emphasis added). The clause "to do so" in the court's language clearly refers to "apply for" a summer jai alai permit. Thus, West Flagler instructs that "declining" under the second sentence of section 550.0745(1) is accomplished by not filing an application to convert under the first sentence of section 550.0745(1).
This reading of the statute is consistent with the "two consecutive years next prior" language in the first sentence of section 550.0745(1). In West Flagler, 139 So. 3d at 422, the court held that the "two consecutive years next prior" language in the statute creates a rolling two-year period. The effect of this rolling two-year period is that the eligible permitholder has the state fiscal year immediately following the two consecutive state fiscal years in which it had the smallest play or total pool in which to apply for a summer jai alai permit. See id. If the eligible permitholder does not apply to convert within this period, its eligibility to convert under the first sentence expires because that specific two-consecutive-year period in which it had the smallest
play or total pool is no longer "next prior."38 Thus, given that that permitholder's eligibility automatically expires by operation of statute, FSBOA's argument that the permitholder nonetheless also has to actively notify the Division that it is not going to convert its permit in order for a new summer jai alai permit to be made available is unpersuasive.
FSBOA argues that its reading of the second sentence of section 550.0745(1) must prevail because it is grammatically correct. Specifically, FSBOA notes that the word "decline" is a transitive verb that means "to refuse to undertake, undergo, engage in, or comply with." Merriam- Webster.com, https://www.merriam-webster.com (last visited Mar. 4 , 2020). "Refuse," is a transitive verb that is defined as "to express oneself as unwilling to accept." Id. Thus, FSBOA reasons, some form of active expression of unwillingness to convert is required on the part of the eligible permitholder in order for a summer jai alai permit to be made available under the second sentence of section 550.0745(1). FSBOA's argument is untenable for four reasons.
First, "refus[al] to undertake, undergo, or engage in"—i.e. to decline– does not require that such refusal be expressed verbally, such as by writing a letter or notifying the Division by electronic mail or telephone message that the permitholder does not intend to convert to summer jai alai. Since the permitholder's eligibility to convert automatically expires at the end of the state fiscal year following the two consecutive state fiscal years next prior in which it had the smallest play or total pool, such declination could consist of simply making the choice not to file—and, then, not filing—a permit application within the finite window of eligibility under the first sentence of
38 An eligible permitholder may be again be eligible to convert by virtue of having had the smallest play or total pool for the next "immediately prior" two-consecutive-year period. The point is that once the one-year period following "the two consecutive years next prior" is over, the eligibility period created by that specific two-consecutive-year period expires by operation of the "next prior" language in the statute.
section 550.0745(1). This conclusion is consistent with the court's language cited in West Flagler, 139. So. 3d at 422.
FSBOA's position also disregards the legislature's use of the word "hereby" in the phrase "a new permit is hereby made available" in the second sentence of section 550.0745(1). "Hereby" is defined as "by this means." Merriam-Webster Collegiate Dictionary (11th ed. 2003). "By this means" refers to the statute itself. Thus, the new permit is made available by the statute.
FSBOA's espoused reading effectively would read the word "hereby" out of the statute, or, instead, would require substitution of the word "thereby" in the statute. Thus, if FSBOA's reading were correct, the statute should state "[i]f a permittee who is eligible to convert a permit declines to convert, a new permit is made available in that permittee's county," or, alternatively, "[i]f a permittee who is eligible to convert a permit declines to convert, a new permit is thereby made available in that permittee's county."39
Consistent with the statute's plain language requiring an eligible permittee to file an application in order to convert its permit to summer jai alai and effectively providing a one-year period in which to do so, the word "hereby" can only mean that if the permittee does not apply to convert, a new summer jai alai permit is made available by operation of statute—not that the permit becomes available only if an eligible permittee also takes the redundant act of affirmatively notifying the Division that it is not going to convert.
Third, the statute's plain language does not expressly require the eligible permitholder to actively notify the Division that it is not converting its permit to a summer jai alai permit in order for a new permit to be made available. Thus, FSBOA urges a reading that effectively adds words to the statute that the legislature did not include, in contravention of the principle
39 The word "thereby" means "by means of that." The term "that" would refer to the
permittee's affirmative act of declining to convert.
that courts and quasi-judicial fora should not read words into a statute that the legislature itself did not include. Armstrong v. City of Edgewater, 157 So. 2d 422, 425 (Fla. 1963); State v. Geiss, 70 So. 3d 642, 647 (Fla. 5th DCA
2011), review dismissed, 88 So. 3d 111 (Fla. 2012).
Furthermore, if FSBOA were correct, any such "affirmative declination" requirement necessarily would be implied. The consequence of a new summer jai alai permit not being made available under the second sentence of section 550.0745(1) is that the state would be deprived of the additional revenue generated by a new, presumably more profitable pari- mutuel permit. It would be illogical for the legislature to give a permitholder the unilateral power to deprive other permitholders of the opportunity to convert simply by not affirmatively notifying the Division that it is not converting to summer jai alai. See South Florida Racing, 201 So. 2d at 62 (recognizing that a stated statutory purpose of allowing conversion to summer jai alai is to "greatly enhance the tax revenue derived by the state").
FSBOA relies heavily on endnote 6 the Recommended Order in West Flagler Associates, Ltd. v. Department of Business and Professional Regulation, Case Nos. 15-6773 and 15-6774 (Fla. DOAH June 20, 2016), rejected in part, Case Nos. 2015-030305 and 2015-030307 (Fla. DBPR Sept. 16, 2016), affirmed, West Flagler Associates v. Department of Business and Professional Regulation, 219 So. 3d 149 (Fla. 3d DCA 2017). That endnote states:
The record is silent as to whether Summer Jai Alai Partnership ever affirmatively “decline[d] to convert.” That issue was not addressed by either party. The December 2, 2015, notice of proposed agency action regarding the July Application is predicated on the assumption that West Flagler was seeking to convert its own permit to a permit to conduct a summer jai alai fronton. Though the parties seemed to acknowledge that, if simulcast export wagers were included in the play or total pool, Summer Jai Alai Partnership would have the
smallest play or total pool for state fiscal years 2013/2014 and 2014/2015, there was no evidence to suggest that Summer Jai Alai Partnership was advised of that determination, or that it ever took any action thereon. Thus, this Recommended Order should not be construed as determining whether any necessary condition precedent to the creation of a summer jai alai permit on the part of Summer Jai Alai Partnership was performed.
However, taken at face value, the language in endnote 6 simply states that the Recommended Order did not determine whether a necessary condition precedent of was performed—not that "affirmative declination" was a necessary condition precedent to summer jai alai permit creation.
For these reasons, FSBOA's reading of section 550.0745(1) as requiring "affirmative declination" in order for a new summer jai alai permit to be made available is rejected as not supported by the plain language of section 550.0475(1).
Therefore, it is concluded that a summer jai alai permit was made available for state fiscal years 2004/2005 and 2005/2006 pursuant to section 550.0745(1), and, thus, was available for issuance to PPI.
Applicability of Statute of Limitation To Summer Jai Alai Permit Creation
FSBOA contends that even if a new summer jai alai permit was created in Broward County for state fiscal years 2004/2005 and 2005/2006, that permit was extinguished by operation of the statute of limitation in section 95.11(3)(p), which creates a four-year limitation on "[a]ny action not specifically provided for in these statutes."
Accepting FSBOA's contention would effectively read, into the second sentence of section 550.0745(1), a time limitation that is not supported by the language of that statute.
In the first sentence of section 550.0745(1), the legislature effectively created a one-year timeframe for the permitholder having the smallest play
or total pool in the county for the immediately prior two consecutive years to apply to convert its permit to a summer jai alai permit. See West Flagler Assocs. v. Dep't of Bus. & Prof'l Reg., 139 So.3d 419, 422 (Fla. 1st DCA 2014). Under the second sentence of the statute, if that permitholder declines to convert within that one-year period, then a new summer jai alai permit is made available for which another permitholder in the county may apply. The second sentence of the statute does not impose any time limit on another permitholder to apply for the newly-created summer jai alai permit, and reading one into the statute would violate the principle that courts and quasi- judicial fora should not read words into a statute that the legislature itself did not include. Armstrong, 157 So. 2d 422, 425 (Fla. 1963); Geiss, 70 S. 3d
642, 647 (Fla. 5th DCA 2011), review dismissed, 88 So. 3d 111 (Fla. 2012).
The court's holding in West Flagler Associates, Ltd. v. Department of Business and Professional Regulation, 216 So. 2d 692 (Fla. 1st DCA 2017), also undermines FSBOA's position. At issue in that case was whether the time limit on converting to a summer jai alai permit imposed by the "next prior" language in the first sentence of section 550.0745(1) also applied to a permitholder seeking to apply for a summer jai alai permit made available pursuant to the second sentence. In holding that the time limit imposed in the first sentence did not apply to a permitholder applying for a summer jai alai permit created by the second sentence, the court noted that "the time limitation placed by the legislature in the first sentence is conspicuously absent in the second." Id. at 695.
Thus, it is concluded that had the legislature intended to impose a time limit—whether through a statement in the statute itself or pursuant to a statute of limitation—to apply for a summer jai alai permit made available under the second sentence of section 550.0745(1), it would have so stated.
FSBOA's position also is contrary to case law holding that statutes of limitation do not apply to administrative licensure proceedings in Florida.
In Hames v. City of Miami Firefighters' and Police Officers' Trust, 980 So. 2d 1112 (Fla. 3d DCA 2008), the court noted that in the absence of a separately provided time period, the limitation periods set forth in chapter 95 apply to "any civil action," so that the question becomes whether an administrative action constitutes an administrative substitute for a civil action to which chapter 95 statutes of limitation apply. The court observed that although statutes of limitation have been applied in certain types of administrative cases, such as workers' compensation and retirements benefits forfeiture cases, courts routinely have refused to apply them in administrative licensure proceedings because such proceedings do not constitute substitutes for civil actions.
To this point, in Sarasota County v. National City Bank, 902 So. 2d 233 (Fla. 2d DCA 2005), the court stated that "nothing in section 95.11 . . . suggests that the legislature intended for statutes of limitation established in that statute to apply to quasi-judicial proceedings initiated pursuant to administrative law." Id. at 234-35. Likewise, in Lee Memorial Health System Gulf Coast Medical Center v. Agency for Health Care Administration, 272 So. 3d 431 (Fla. 1st DCA 2019) the court held, in the Medicaid overpayment reimbursement context, that "the statute of limitations does not apply, because the instant case is a quasi-judicial administrative proceeding". Id. at 440; see also Ong v. Dep't of Prof'l Reg., 565 So. 2d 1384, 1386 (Fla. 5th DCA 1999); Landes v. Dep't of Prof'l Reg., 441 So. 2d 686, 686 (Fla. 2d DCA 1983).
For these reasons, it is concluded that the statute of limitation established in section 95.11(3)(p) does not apply in this administrative proceeding to extinguish the summer jai alai permit that was created in Broward County by operation of section 550.0745(1) for state fiscal years 2004/2005 and 2005/2006.
FSBOA's Standing
In this proceeding, FSBOA alleges that as a result of the alleged unadopted rules, PPI will substitute summer jai alai for harness racing as its required pari-mutuel activity, thereby causing FSBOA and its members to suffer substantial economic injury through loss of income and potential loss of livelihood.
The Division and PPI contend that FSBOA lacks standing in this proceeding to challenge the summer jai alai permit, the issuance of which FSBOA has alleged is based on the Division's formulation and application of agency statements that constitute unadopted rules.
For the reasons discussed below, it is concluded that FSBOA has demonstrated its standing in this proceeding, both as an association representing its members who will be substantially affected by the alleged unadopted rules, and as an entity that will be substantially affected by the alleged unadopted rules.
Rule Challenge Standing Case Law
To have standing to challenge a rule, including an agency statement that is alleged to be an unadopted rule under section 120.56(4), the challenger must be substantially affected by the statement alleged to be an unadopted rule. § 120.56(4)(a); See Jacoby v. Fla. Bd. of Med., 917 So. 2d 358 (Fla. 1st DCA 2005).
For an association to have standing to represent the interests of its members in a rule challenge, including an unadopted rule challenge under section 120.56(4), the association must demonstrate that: (1) a substantial number of its members are substantially affected by the unadopted rule; (2) that the rule is within the association's general scope of interest and activity; and (3) the relief requested must be of a type appropriate for an association to receive on behalf of its members. NAACP, Inc. v. Bd. of Regents, 863 So. 2d 294, 298 (Fla. 2003); Fla. Home Builders Ass'n. v. Dep't of Labor & Emp. Sec., 412 So. 2d 351, 353-54 (Fla. 1982).
Similar to the "substantial interests" standing test established in Agrico Chemical Company v. Department of Environmental Regulation, 406 So. 2d 478 (Fla. 2d DCA 1981), for challenges to agency action under section 120.57, the "substantially affected" test for standing to challenge rules under section 120.56 requires the challenger to demonstrate that the rule will cause him or her to suffer an injury in fact that is within the zone of interest protected by the pertinent statutes. Fla. Med. Ass'n, Inc. Dep't of Prof'l Reg., 426 So. 2d 1112 (Fla. 1st DCA 1983).
Injury In Fact
The Division contends that neither FSBOA nor its members will suffer an injury in fact in this proceeding because they are not subject to direct regulation by the unadopted rules. The Division's argument disregards case law holding, under substantially comparable circumstances, that it is not necessary for a person to be directly regulated by a rule in order to have standing to challenge the rule.
In NAACP v. Board of Regents, the Florida Supreme Court reversed the district court's conclusion that the NAACP's members lacked standing to challenge proposed rules that would prohibit the use of racial or gender preferences or quotas in admissions to Florida institutions of higher learning because they were not "regulated" by the rules, such that their alleged injuries were speculative. The Court concluded that although NAACP's student members were not necessarily current applicants for university admission, the association demonstrated a sufficient impact on its student members, as prospective candidates for admission into the state university system, to meet the injury in fact requirement. Id. at 300.
The court's holding in Ward v. Board of Trustees of the Internal Improvement Trust Fund, 651 So. 2d 1236 (Fla. 4th DCA 1995), also supports FSBOA's standing. In Ward, a licensed professional engineer challenged proposed rules that would have imposed stringent design restrictions on docks constructed in aquatic preserves. Ward alleged that he designed docks
in aquatic preserves and that if he complied with the proposed rules, he would be forced to design unsafe structures, subjecting him to disciplinary action by the Board of Professional Engineers. In reversing the hearing officer's determination that Ward lacked standing, the court held that his alleged injury was sufficiently direct and immediate for standing, even though the rules did not directly regulate Ward's engineering practice. The court noted that even where a challenged rule or its promulgating statute does not directly regulate a challenger's profession per se, if the rule has the collateral effect of impacting the challenger's conduct, with economic consequences, the challenger is substantially affected by the rule. See id. at 1237.
Televisual Communications v. Department of Labor and Employment Security, 667 So. 2d 373 (Fla. 1st DCA 1995), also supports FSBOA's standing in this proceeding. In Televisual, a producer of home or self-directed study materials for physician certification, challenged proposed rules that would establish new requirements for approval of physician certification training courses, to require that when a course utilized audio-visual materials, an instructor must be present on-site to answer questions regarding the subject matter presented. Televisual contended that the rules would preclude it from producing and marketing a home study course for physician certification, and that as a consequence, it would fail to realize profits from the sale of videos that it might, if the rule allowed home study, otherwise garner. Id. at 373. In holding that Televisual had standing to challenge the rule, the court stated that Televisual "was indeed affected by the proposed rule which had the collateral effect of regulating [Televisual's] industry," and that the alleged financial impact of the rule's collateral effect was sufficient to confer standing to challenge the rule. Id. at 374.
In Department of Professional Regulation v. Florida Dental Hygienist
Association, 612 So. 2d 646 (Fla. 1st DCA 1993), an association of Florida- licensed dental hygienists challenged a proposed rule that would have made
graduates of an out-of-state dental hygiene program eligible for licensure in Florida, even though that program was not accredited by the American Dental Association. Id. at 647-48. The association alleged that the proposed rule would diminish the value of the Florida hygienists' superior training by allowing unqualified persons to enter the field. In determining that the association had standing to challenge the rule on behalf of its members, the court stated:
It requires no flight of imagination to reason that if the rule would produce a flood of lesser-trained hygienists, presumably available for employment for less compensation, this would have an economic impact of the existing pool of more highly-trained individuals.
Id. at 649 (emphasis added).
The fact that the court did not consider the hygienists' anticipated economic injury to be too speculative in order to have standing teaches that, in the rule challenge context, the concept of injury in fact, as it related to plausible economic harm, is a relatively relaxed one. Reduced to a succinct legal principle, this case holds that a reasonably foreseeable economic impact, if events were to unfold in a manner consistent with the challenger's plausible concerns, is sufficient to afford standing to challenge a rule.40
These cases make clear that collateral economic impact from a rule is a sufficient injury in fact to confer standing to challenge the rule. Thus, here, FSBOA's members will suffer an injury in fact as a result of the alleged unadopted rules that is sufficient to confer standing to FSBOA to challenge those alleged rules in this proceeding.
40 The court further noted: "[i]n all fairness, to deny the hygienists standing to challenged alleged unauthorized [rules] of the Board detrimental to their interests would produce the anomalous result that virtually no one would have such standing. In our view . . . such a result would thwart the purposes of section 120.54." Id. at 652.
Zone of Interest
The Division also contends that the alleged economic injury to FSBOA's members does not fall within the zone of interest of this proceeding. The Division's position is not supported by case law holding that alleged economic injury is sufficient to confer standing to challenge rules.
In Department of Professional Regulation v. Sherman College, 682 So. 2d 559 (Fla. 1st DCA 1995), a chiropractic college challenged a proposed chiropractic certification rule that imposed new, more stringent requirements on applicants sitting for the chiropractic license examination in Florida, to demonstrate that they had obtained their degree from a college that was both regionally and professionally accredited. In determining that Sherman College ("Sherman"), a regionally accredited college, had standing to challenge the rule, the court noted that, due to the proposed rule's requirement that an applicant also have graduated from a professionally accredited institution, the enrollment at Sherman had substantially dropped, thereby causing it to suffer significant economic loss. In determining that Sherman's economic injury was sufficient to afford standing to challenge the rule, the court observed that, although Sherman did not have a legal entitlement to freedom from competition for purposes of producing students qualified to sit for the licensure examination, "it by no means follows that the assertion of interest economic in nature can never furnish standing to challenge . . . agency rules." Id. at 559. The court found Sherman's collateral economic injury41 due to the new accreditation requirement sufficient to afford standing to challenge the rule. Id. at 561.
Abbott Laboratories v. Mylan Pharmaceuticals, Inc., 15 So. 3d 642, 651 (Fla. 1st DCA 2009), also supports FSBOA's standing. In Abbott, the court held that a pharmaceutical company that manufactured a particular
41 The court further observed that although the rule directly regulated the students who applied for licensure, Sherman's interest in maintaining its reputation and attracting students was "more immutable than any student's." Id.
generic drug had standing to challenge a rule that prohibited pharmacists from freely substituting the generic drug from a brand-name version of the drug because the rule would cause the company to suffer economic injury from loss of sales of its generic drug.
Additionally, as discussed above, in Florida Dental Hygienist Association, the court held that even a relatively attenuated collateral economic injury was a protected interest sufficient to confer standing to challenge the rule that would result in that injury.
These cases make clear that collateral economic injury resulting from a rule is a protected interest for purposes of conferring standing to challenge the rule. Thus, FSBOA's members will suffer an injury in fact as a result of the alleged unadopted rules that is sufficient to confer standing to FSBOA to challenge those alleged rules in this proceeding.
Calder Declaratory Statement
The Final Order Granting Declaratory Statement, DS 2018-057 (DBPR Oct. 23, 2018), affirmed, Florida Thoroughbred Breeders' and Owners' Association v. Calder Race Course, 283 So. 3d 843 (Fla. 1st DCA 2019)("Calder Declaratory Statement"), provides strong support for FSBOA's standing to represent its members' interests in this rule challenge proceeding.
In that declaratory statement proceeding—which involved circumstances substantially identical to those in this case—at issue was whether Calder could switch its permitted pari-mutuel activity from thoroughbred racing to summer jai alai gaming, for which it recently had obtained a permit. The Florida Thoroughbred Breeders' and Owners' Association ("FTBOA") moved to intervene in the declaratory statement proceeding, alleging that its members' substantial interests would be affected by issuance of the declaratory statement. In granting FTBOA's intervention, the Division found that FTBOA had asserted that a substantial number of its members would "be forced to compete for lessened awards and purses
resulting from the cessation of revenues garnered under the thoroughbred races that [Calder] hosts, thus demonstrating that "a substantial number of its members stand to be 'substantially affected.'" Id. at 4-5, ¶10. Thus, the Division determined that FTBOA had standing to intervene and participate as a party to the declaratory statement.42
The injuries that FSBOA alleges in this rule challenge proceeding are substantially identical to those that FTBOA alleged in the Calder Declaratory Statement, and the "substantially affected" standing standard for party status in a declaratory statement proceeding under section 120.565 is the same as that for rule challenge proceedings under section 120.56. Fed'n of Mobile Home Owners v. Dep't of Bus. Reg., 479 So. 2d 252, 253 (Fla. 1st DCA 1985)(concluding that the same standing standard applies in rule challenges and declaratory statement proceedings).43 Thus, the Calder Declaratory Statement supports FSBOA's associational standing to participate in this proceeding on behalf of its members.
Based on the foregoing, it is concluded that FSBOA's members' substantial interests will be affected in this proceeding.
42 Declaratory statements are final orders issued pursuant to section 120.565 which set forth the agency's opinion regarding the applicability of a statutory provision, or of any rule or order of the agency, as it applies to the petitioner's particular set of circumstances. Declaratory statements are binding only on the parties to the declaratory statement, which include the agency, the petitioner, and any parties allowed to intervene on the basis that they are or would be substantially affected by the matters that are the subject of the declaratory statement. However, because declaratory statements may, in a practical sense, affect the rights of persons who are not parties, declaratory statements have "precedential significance." Fla. Dep't of Bus. & Prof'l Reg. v. Inv. Corp., 747 So. 2d 374, 381 (Fla. 1999). The Calder Declaratory Statement supports FSBOA's contention that it is entirely reasonable to expect that PPI will, at some point in the future and in reliance on the Calder Declaratory Statement, switch its pari-mutuel activity from harness racing to summer jai alai.
43 Thus, the Division takes a position in this case that is directly contrary to the position it took in a previous proceeding under substantially identical circumstances, and subject to the same legal standard, without providing any plausible explanation for the inconsistency.
FSBOA's Associational Scope Of Interest And Appropriateness Of Relief Sought
As found above, FSBOA's purpose is to represent the interests of its members regarding all aspects of the Florida standardbred horse industry and harness racing in Florida. The subject matter of this proceeding—which is to challenge alleged unadopted rules that FSBOA contends constitute the basis of proposed agency action that will cause its members to suffer substantial economic harm—falls within FSBOA's general scope of interest and activity. See Calder Declaratory Statement, at 5, ¶10.
Additionally, the relief that FSBOA seeks on behalf of its members— prohibiting the Division from applying alleged unadopted rules that will result in its members suffering substantial economic harm—is of a type appropriate for an association to receive on behalf of its members. Fla. Home Builders Ass'n, 412 So. 2d at 354; see also Calder Declaratory Statement, at 5,
¶10.
Based on the foregoing, it is concluded that FSBOA has associational standing to represent its members' interests in this rule challenge proceeding.
FSBOA's Standing As An Entity
FSBOA also contends that its own substantial interests, as an entity, will be injured by issuance of the summer jai alai permit.
Specifically, FSBOA asserts—and has shown by evidence at the hearing—that it is reasonably likely that as the result of issuance of the summer jai alai permit to PPI on the basis of alleged unadopted rules, PPI will substitute summer jai alai for standardbred racing as its pari-mutuel activity at Pompano Park, and will cease conducting harness racing at Pompano Park.
Because Pompano Park is the only facility in Florida at which pari- mutuel harness racing is conducted, FSBOA will be injured by the loss of revenue that would result from the discontinuation of harness racing at
Pompano Park, and will be unable to perform the statutory duties with which it has been charged in section 550.2625(4). These duties include receiving payments from standardbred permitholders conducting harness races to pay breeders' awards, stallion awards, stallion stakes, and other purses and prizes, and generally promoting the ownership and breeding of Florida-bred standardbred horses.
For the reasons discussed above, it is concluded that FSBOA has demonstrated that its substantial interests, as an entity, will be affected by this proceeding.
FSBOA Has Demonstrated Standing In This Proceeding
Based on the foregoing, it is concluded that FSBOA has demonstrated its associational standing to challenge the alleged unadopted rules at issue in this proceeding.
Based on the foregoing, it is also concluded that FSBOA has standing as an entity that will be substantially affected by the alleged unadopted rules at issue in this proceeding.
Determination Regarding Each Agency Statement Alleged To Be An Unadopted Rule
The statutory provisions and case law standards pertinent to determining whether an agency statement constitutes an unadopted rule are set forth in section II. of these Conclusions of Law, above.
Pursuant to the foregoing findings and conclusions, following are the conclusions of law with respect to each alleged agency statement alleged by FSBOA to be an unadopted rule.
FSBOA alleges the following unadopted rule:
[T]hat notwithstanding the provisions of section 550.0745(1), the Division will approve an application for a summer jai alai permit without regard to whether there is an eligible permitholder in an eligible county that has had the smallest play or total pool within one of the applicable counties,
Miami-Dade or Broward, for two consecutive state fiscal years.
This alleged agency statement is not a rule. In this case, the Division applied the plain language of section 550.0745(1) and other applicable provisions of chapter 550, and, as pertinent, the case law interpreting section 550.0745, to determine which permitholder had smallest play or total pool in Broward County for state fiscal years 2004/2005 and 2005/2006. For the reasons discussed above, it is concluded that the Division's approach to determining the smallest play or total pool in a county does not constitute an unadopted rule.
Here, the Division determined that permit #141 had the smallest play or total pool in Broward County for state fiscal years 2004/2005 and 2005/2006, so was eligible to be converted to a summer jai alai permit. When Bet Miami did not convert permit #141, a summer jai alai permit was made available in Broward County for those state fiscal years. The Division's decision to approve PPI's application for that summer jai alai permit was based on its correct determination that Bet Miami was eligible to convert to summer jai alai and did not do so, so that a summer jai alai permit was made available in Broward County for state fiscal years 2004/2005 and 2005/2006.
For these reasons, it is concluded that this alleged agency statement does not constitute an unadopted rule.
FSBOA alleges the following unadopted rule:
[T]hat notwithstanding the provisions of section 550.0745(1), [Florida Statutes] a summer jai alai permit was created in Broward County in association with the consecutive state fiscal years 2006/2007 and 2007/2008 notwithstanding that there was no eligible permitholder in Broward County that had the smallest play or total pool in Broward County for both of said consecutive fiscal years, 2006/2007 and 2007/2008[.]
This alleged agency statement is not a rule. In this case, the Division applied the plain language of section 550.0745(1) and other pertinent provisions of chapter 550, and, as pertinent, the case law interpreting section 550.0745, to determine which pari-mutuel permitholder had smallest play or total pool in Broward County for state fiscal years 2006/2007 and 2007/2008. For the reasons explained above, it is concluded that the Division's approach to determining the smallest play or total pool in a county does not constitute an unadopted rule.
As found above, the Division erroneously included permit #141 as a "Broward County permit" for state fiscal years 2006/2007 and 2007/2008, even though Bet Miami was not authorized by annual license to conduct— and did not conduct—pari-mutuel pools in Broward County in state fiscal year 2006/2007. As discussed above, when the Division was informed of its error, it recalculated the play or total pool in Broward County for those state fiscal years and determined that Bet Miami was not eligible to convert to summer jai alai for those state fiscal years, so that a summer jai alai permit had not been made available in Broward County for those state fiscal years.
For these reasons, it is concluded that this alleged agency statement does not constitute an unadopted rule.
FSBOA alleges the following unadopted rule:
[T]hat notwithstanding the provisions of section 550.0745(1), the Division approved PPI's application for a summer jai alai permit without regard to the fact that there was no eligible permitholder in Broward County that had the smallest play or total pool in Broward County for both of the two consecutive state fiscal years identified in PPI's application, to-wit: 2006/2007 and 2007/2008.
This alleged agency statement is not a rule. In this case, the Division applied the plain language of section 550.0745(1) and other pertinent provisions of chapter 550, and, as pertinent, the case law interpreting
section 550.0745, in determining which pari-mutuel permitholder had smallest play or total pool in Broward County for state fiscal years 2006/2007 and 2007/2008. For the reasons explained above, it is concluded that the Division's approach to determining the smallest play or total pool in a county does not constitute an unadopted rule.
As found above, the Division erroneously included Bet Miami as a "Broward County permit" for state fiscal years 2006/2007 and 2007/2008, even though Bet Miami was not authorized by annual license to conduct— and did not conduct—pari-mutuel pools in Broward County in state fiscal year 2006/2007. As discussed above, once the Division was informed of its error, the Division reevaluated its decision and determined that Bet Miami was not eligible to convert to a summer jai alai permit for those state fiscal years, so that a summer jai alai permit was not made available for those state fiscal years. In any event, the Division's initial incorrect decision that a summer jai alai permit was made available for state fiscal years 2006/2007 and 2007/2008 was rendered moot when the Division amended its proposed agency action to issue the summer jai alai permit based instead on state fiscal years 2004/2005 and 2005/2006.
For these reasons, it is concluded that this alleged agency statement does not constitute an unadopted rule.
FSBOA alleges the following unadopted rule:
[T]hat notwithstanding the provisions of section 550.0745(1), a summer jai alai permit was created in Broward County in association with the consecutive state fiscal years 2004/2005 and 2005/2006, notwithstanding that there was no eligible permitholder in Broward County that had the smallest play or total pool for both of said consecutive state fiscal years, 2004/2005 and 2005/2006.
This alleged agency statement is not a rule. In this case, the Division applied the plain language of section 550.0745(1) and other applicable
provisions of chapter 550, and, as pertinent, the case law interpreting section 550.0745, to determine which permitholder had smallest play or total pool in Broward County for state fiscal years 2004/2005 and 2005/2006. For the reasons discussed above, it is concluded that the Division's approach to determining the smallest play or total pool in a county does not constitute an unadopted rule.
Here, the Division determined that permit #141 had the smallest play or total pool in Broward County for state fiscal years 2004/2005 and 2005/2006, so was eligible to be converted to a summer jai alai permit. When Bet Miami did not convert permit #141, a summer jai alai permit was made available in Broward County for those state fiscal years.
For these reasons, it is concluded that this alleged agency statement does not constitute an unadopted rule.
FSBOA alleges the following unadopted rule:
[T]hat notwithstanding the provisions of section 550.0745(1), the Division approved PPI's application for a summer jai alai permit without regard to the fact that there was no eligible permitholder in Broward County that had the smallest play or total pool in Broward County for both of the two consecutive state fiscal years identified in the Division's calculation chart attached as Exhibit F [to the Rule Challenge Petition],[44] to-wit: 2004/2005 and 2005/2006.
This alleged agency statement is not a rule. In this case, the Division applied the plain language of section 550.0745(1) and other applicable provisions of chapter 550, and, as pertinent, the case law interpreting section 550.0745, to determine which permitholder had smallest play or total pool in Broward County for state fiscal years 2004/2005 and 2005/2006. For the reasons discussed above, it is concluded that the Division's approach to
44 As noted above, Exhibit F to the Rule Challenge Petition contains the same information as Exhibit B to the parties' Amended Joint Pre-Hearing Stipulation, which is included in paragraph 148, above.
determining the smallest play or total pool in a county does not constitute an unadopted rule.
Here, the Division determined that permit #141 had the smallest play or total pool in Broward County for state fiscal years 2004/2005 and 2005/2006, so was eligible to be converted to a summer jai alai permit. When Bet Miami did not convert permit #141, a summer jai alai permit was made available in Broward County for those state fiscal years. The Division's decision to approve PPI's application for that summer jai alai permit was based on its correct determination that a summer jai alai permit was made available in Broward County for state fiscal years 2004/2005 and 2005/2006.
For these reasons, it is concluded that this alleged agency statement does not constitute an unadopted rule.
FSBOA alleges the following unadopted rule:
[T]hat notwithstanding the provisions of section 550.0745(1), the Division will approve an application for a [summer jai alai] permit without regard to the fact that the permitholder alleged to have the smallest play or total pool in Broward County, whether during the two consecutive state fiscal years 2004/2005 and 2005/2006 or during the two consecutive state fiscal years 2006/2007 and 2007/2008 was situated in Miami-Dade County as opposed to Broward County;
This alleged agency statement is not a rule. The Division applied the plain language of section 550.0745 and other pertinent provisions of chapter 550, and, as pertinent, case law interpreting section 550.0745 in determining smallest play or total pool. For the reasons discussed above, it is concluded that the Division's approach to determining smallest play or total pool does not constitute an unadopted rule.
Additionally, the Division applied the plain language of section 550.0745 and other pertinent provisions of chapter 550, and, as pertinent, case law interpreting section 550.0745 in determining that permit #141 was a
Broward County permit for purposes of being included in determining which permitholder had smallest play or total pool in Broward County for state fiscal years 2004/2005 and 2005/2006. For the reasons discussed above, it is concluded that the Division's determination that permit #141 was a Broward County permit for purposes of section 550.0745(1) does not constitute an unadopted rule.
As discussed above, the Division correctly determined that Bet Miami was a Broward County permit and had the smallest play or total for state fiscal years 2004/2005 and 2005/2006, so that a summer jai alai permit was made available for those years. The Division's decision to approve PPI's application for that summer jai alai permit was based on its correct determination that a summer jai alai permit was made available in Broward County for those state fiscal years. Accordingly, it is concluded that this alleged agency statement does not constitute an unadopted rule.
FSBOA alleges the following unadopted rule:
[T]hat notwithstanding the provisions of section 550.0745(1), the Division, in making the calculations required by section 550.0745(1) for the purposes of determining the availability of a summer jai permit, improperly and erroneously excludes from such calculations the pari-mutuel handle generated by each of the pari-mutuel permitholders in Broward County on the following wagering pools/categories, to-wit: [i]ntertrack wagering handle as a guest; [i]ntertrack wagering as a host on "ITW rebroadcasts;" and "[s]imulcast handle as a guest.
This alleged agency statement is not a rule. The Division applied the plain language of section 550.0745 and other pertinent provisions of chapter 550, and, as pertinent, case law interpreting section 550.0745 in determining smallest play or total pool. For the reasons discussed above, it is concluded that the Division's approach to determining smallest play or total pool, which excludes handle from intertrack wagering as a guest, simulcast import (i.e.,
simulcast as a guest), and simulcast rebroadcast as guest and as host (i.e., intertrack wagering rebroadcast as guest and as host), does not constitute an unadopted rule.
FSBOA alleges the following unadopted rule:
[T]hat notwithstanding the provisions of section 550.0745(1), the Division approved PPI's application for a summer permit after improperly and erroneously excluding from the calculations required by section 550.0745 the pari-mutuel handle generated by each of the pari-mutuel permitholders in Broward County on the following wagering pools/categories, to-wit: [i]ntertrack wagering handle as a guest; [i]ntertrack wagering as a host on "ITW rebroadcasts;" and "[s]imulcast handle as a guest.
This alleged agency statement is not a rule. The Division applied the plain language of section 550.0745 and other pertinent provisions of chapter 550, and, as pertinent, case law interpreting section 550.0745, in determining smallest play or total pool in Broward County. For the reasons discussed above, it is concluded that the Division's method for determining smallest play or total pool, which excludes handle from intertrack wagering as a guest, simulcast import (i.e., simulcast as a guest), and simulcast rebroadcast as guest and as host (i.e., intertrack wagering rebroadcast as guest and as host) in determining the guest-permitholder's play or total pool, does not constitute an unadopted rule. Here, the Division correctly determined, based on its exclusion of these types of wagers, that Bet Miami had the smallest play or total for state fiscal years 2004/2005 and 2005/2006, so that a summer jai alai permit was made available for those years. As discussed above, the Division's decision to approve PPI's application for that summer jai alai permit was based on its correct determination that a summer jai alai permit was made available for those state fiscal years. Thus, it is concluded that this alleged agency statement does not constitute an unadopted rule.
FSBOA alleges the following unadopted rule:
[T]hat notwithstanding the provisions of section 550.0745(1), the Division, in making the calculations required by section 550.0745(1) for the purposes of determining that the Bet Miami permit had the smallest pari-mutuel handle in Broward County for the consecutive fiscal years 2004/2005 and 2005/2006, improperly and erroneously excluded from such calculations all of the pari- mutuel handle generated by the Bet Miami permit during said consecutive state fiscal years, 2004/2005 and 2005/2006, and instead erroneously pro-rated the handle between the two leased locations at which the Bet Miami permit operated during said fiscal years.
This alleged agency statement is not a rule. The Division applied the plain language of section 550.0745 and other pertinent provisions of chapter 550, and, as pertinent, case law interpreting section 550.0745 in determining smallest play or total pool in Broward County for state fiscal years 2004/2005 and 2005/2006. For the reasons discussed above, it is concluded that the Division's determination of smallest play or total pool is not a rule. Additionally, as discussed above, the Division's determination that the wagering handle from Bet Miami's pari-mutuel pools in Miami-Dade County should not be included in determining its play or total pool in Broward County is based on the plain language of section 550.0745(1) and other pertinent provisions of chapter 550, and the case law interpreting section 550.0745, so does not constitute an unadopted rule.
For these reasons, it is concluded that this alleged agency statement does not constitute an unadopted rule.
FSBOA alleges the following unadopted rule:
[T]hat notwithstanding the provisions of section
95.11 [Florida Statutes] or any similar statute that imposes a statute of limitation on the taking or initiation of any particular action, the Division will approve an application for a summer jai alai permit notwithstanding that the application was filed outside either the four-year period described in
section 95.11 or outside the applicable limitation period[,] if not section 95.11.
This alleged agency statement is not a rule. As discussed above, it is concluded that no statutes of limitation apply to extinguish summer jai alai permits made available pursuant to the second sentence of section 550.0745(1). Therefore, this alleged statement is based on the incorrect premise that section 95.11 applies to summer jai alai permits made available under section 550.0745(1).
Here, the Division applied the plain language of section 550.0745(1) and other pertinent provisions of chapter 550, and the case law interpreting section 550.0745 to determine that a summer jai alai permit was available for state fiscal years 2004/2005 and 2005/2006, for which PPI could apply. As found above, PPI was a qualified applicant for the summer jai alai permit created for those state fiscal years, so the Division issued that permit to PPI. As discussed above, the statutes of limitation in section 95.11 do not apply to summer jai alai permits made available under section 550.0745, so the Division did not apply an unadopted rule in determining that the summer jai alai permit made available for state fiscal years 2004/205 and 2005/2006 was available for issuance to PPI.
Accordingly, it is concluded that this alleged agency statement does not constitute an unadopted rule.
In sum, based on the foregoing, it is determined that the Division did not rely on any unadopted rules in determining that a summer jai alai permit was made available in Broward County for state fiscal years 2004/2005 and 2005/2006, and in issuing that permit to PPI, as a qualified applicant.
Attorney's Fees
Because none of the alleged agency statements constitute unadopted rules, Petitioner is not entitled, pursuant to section 120.595(4), to an award of costs and attorney's fees from the Division.
ORDER
Based on the foregoing Findings of Fact and Conclusions of Law, it is ORDERED that the Petition Challenging Agency Statement As An Unadopted Rule filed by Petitioner, Florida Standardbred Breeders' and Owners' Association, Inc., is dismissed.
DONE AND ORDERED this 12th day of March, 2020, in Tallahassee, Leon County, Florida.
S
CATHY M. SELLERS
Administrative Law Judge
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(850) 488-9675
Fax Filing (850) 921-6847 www.doah.state.fl.us
Filed with the Clerk of the
Division of Administrative Hearings this 12th day of March, 2020.
COPIES FURNISHED:
Bradford J. Beilly, Esquire Beilly and Strohsahl, P.A. 1144 Southeast Third Avenue
Fort Lauderdale, Florida 33316 (eServed)
Louis Trombetta, Director Division of Pari-Mutuel Wagering,
Department of Business and Professional Regulation 2601 Blair Stone Road
Tallahassee, Florida 32399 (eServed)
Megan S. Silver, Esquire
Division of Pari-Mutuel Wagering,
Department of Business and Professional Regulation 2601 Blair Stone Road
Tallahassee, Florida 32399 (eServed)
Jason Walter Holman, Esquire Division of Pari-Mutuel Wagering
Department of Business and Professional Regulation 2601 Blair Stone Road
Tallahassee, Florida 32399 (eServed)
Leonard M. Collins, Esquire GrayRobinson, P.A.
Suite 600
301 South Bronough Street Tallahassee, Florida 32301 (eServed)
M. Stephen Turner, Esquire Nelson Mullins Broad & Cassel Suite 440
215 South Monroe Street Tallahassee, Florida 32301 (eServed)
Raymond Frederick Treadwell, General Counsel Office of the General Counsel
Department of Business and Professional Regulation 2601 Blair Stone Road
Tallahassee, Florida 32399 (eServed)
Halsey Beshears, Secretary
Department of Business and Professional Regulation 2601 Blair Stone Road
Tallahassee, Florida 32399-2202 (eServed)
Ken Plante, Coordinator
Joint Administrative Procedures Committee Room 680, Pepper Building
111 West Madison Street Tallahassee, Florida 32399-1400 (eServed)
Ernest Reddick, Program Administrator Anya Grosenbaugh
Florida Administrative Code & Register
R.A. Gray Building
500 South Bronough Street Tallahassee, Florida 32399-0250 (eServed)
NOTICE OF RIGHT TO JUDICIAL REVIEW
A party who is adversely affected by this Final Order is entitled to judicial review pursuant to section 120.68, Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing the original notice of administrative appeal with the agency clerk of the Division of Administrative Hearings within 30 days of rendition of the order to be reviewed, and a copy of the notice, accompanied by any filing fees prescribed by law, with the clerk of the district court of appeal in the appellate district where the agency maintains its headquarters or where a party resides or as otherwise provided by law.
| Issue Date | Document | Summary |
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| Mar. 12, 2020 | DOAH Final Order | Petitioner did not prove that any of the alleged agency statements were unadopted rules. Unadopted rule challenge under section 120.56(4) is dismissed. |
