Third District Court of Appeal
                               State of Florida

                           Opinion filed May 31, 2017.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                               No. 3D16-2255
            Lower Tribunal Nos. DBPR: 2016-014603, DS 2016-020
                            ________________


                      West Flagler Associates, Ltd.,
                           Appellant/Cross-Appellee,

                                        vs.

   The State of Florida, Department of Business and Professional
          Regulation, Division of Pari-Mutuel Wagering,
                                    Appellee,

                                       and

         Hartman and Tyner, Inc., and H & T Gaming, Inc.,
                          Appellees/Cross-Appellants.


      An Appeal from the Department of Business and Professional Regulation,
Division of Pari-Mutuel Wagering.

      Akerman LLP and Katherine E. Giddings and Kristen M. Fiore
(Tallahassee), and Gerald B. Cope, Jr., and Tamara S. Malvin (Fort Lauderdale),
for Appellant/Cross-Appellee.

     Jason Maine, General Counsel, and Chevonne Christian, Assistant General
Counsel, and Dwight O. Slater, Chief Appellate Counsel (Tallahassee), for
appellee Department of Business and Professional Regulation, Division of Pari-
Mutuel Wagering.

      Rutledge Ecenia and J. Stephen Menton and Gary R. Rutledge and Tana D.
Storey and Gabe F.V. Warren (Tallahassee), for appellees/cross-appellants
Hartman and Tyner, Inc. and H & T Gaming, Inc.


Before ROTHENBERG, SALTER and FERNANDEZ, JJ.

        SALTER, J.

        West Flagler Associates, Ltd. (“West Flagler”), appeals an order of the

Department of Business and Professional Regulation’s Division of Pari-Mutuel

Wagering (“DPMW”) concluding that DPMW was “unable to answer” West

Flagler’s amended petition for a declaratory statement.1 Two entities which sought

leave to intervene in the administrative proceeding (Hartman and Tyner, Inc., and

H&T Gaming Inc.)2 cross-appeal DPMW’s denial of their motion to intervene as

moot.

        We reverse and remand DPMW’s order with directions to consider and rule

upon both West Flagler’s amended petition and the cross-appellants’ motion to

intervene. We decline West Flagler’s request to render a “complete determination”

1   § 120.565, Fla. Stat. (2016).
2 Hartman and Tyner, Inc., holds a pari-mutuel wagering permit to conduct
greyhound racing and inter-track wagering, and is licensed to operate a cardroom
and slot machines, at the Mardi Gras Casino and Racetrack in Broward County,
Florida. H&T Gaming, Inc., holds a pari-mutuel permit and license to conduct
greyhound racing at Mardi Gras Casino & Racetrack in Miami-Dade County,
Florida.

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(Florida Rule of Appellate Procedure 9.040(a)) of the legal issues in West Flagler’s

amended petition.

      Background and Procedural History

      West Flagler holds a pari-mutuel permit to conduct greyhound racing in

Miami-Dade County. Under a separate license, West Flagler also operates slot

machine gaming in the County. The greyhound racing facility, known as Magic

City Casino, qualified as an “eligible facility” for the slot machine gaming under

the 2004 Florida constitutional amendment authorizing slot machines, article X,

section 23, and the legislation implementing the amendment, section 551.102(4),

Florida Statutes (2016).

      West Flagler also holds a pari-mutuel permit to operate a jai alai fronton in

Miami-Dade County. Before implementing a business plan to substitute jai alai

operations for the greyhound racing at the Magic City Casino facility, West Flagler

sought a declaratory statement from DPMW that the jai alai facility would remain

qualified as an “eligible facility” for slot machine operations. In its amended

petition to DPMW, West Flagler inquired:

      Question 1: Whether West Flagler’s facility located at 

      Avenue, Miami, Florida, 33126, must continue to run the same type of
      racing or gaming that first qualified the facility to become an "eligible
      facility" pursuant to section 551.102(4), Florida Statutes.

      Question 2: Whether, pursuant [to] section 551.102(4), Florida
      Statutes, West Flagler may discontinue the operation of greyhound
      races and instead operate a full schedule of jai alai performances in


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      order to maintain its "eligible facility" status to continue to conduct
      slot machine operations.

      The cross-appellants, essentially competitors through their Mardi Gras

Casino and Racetrack entities, sought leave to intervene in opposition to West

Flagler’s amended petition. West Flagler opposed the motion to intervene.

      DPMW then issued its “Order Declining Petition for Declaratory

Statement,” concluding that it could not “define certain undefined terms used in

both Art. X, sect. 23(a) of the Florida Constitution and in section 551.102(4),

Florida Statutes.” Citing cases such as PPI v. Florida. Department of Business &

Professional Regulation, Division of Pari-Mutuel Wagering, 

(Fla.

1st DCA 2006), the Order determined that DPMW could not interpret

constitutional language and issues and that it was “unable to answer the questions

posed in the Petition.” The Order denied the Mardi Gras entities’ motion to

intervene as moot. This appeal and cross-appeal followed.

      Analysis

      The controlling question—whether the amended petition required an

interpretation of the constitutional amendment as opposed to an interpretation of

the implementing statutory and rule provisions—is an issue of law which we

review de novo. Adventist Health Sys./Sunbelt, Inc. v. Agency for Health Care

Admin., 

(Fla. 1st DCA 2007). Declaratory statements permit

parties to “avoid costly administrative litigation by selecting the proper course of


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action in advance.” 

(quoting Chiles v. Dep’t of State, Div. of Elections,

, 154 (Fla. 1st DCA 1998)).

      DPMW acknowledges that it would have to decide the questions presented

by West Flagler if the issues were presented in a license application.            §§

551.105(1), (3), Fla. Stat. (2016). In the present case, DPMW need not interpret or

apply a constitutional provision. The constitutional amendment itself provided

authority to the Florida Legislature to adopt legislation implementing the

amendment and to authorize agency rules for implementation. Art. X, § 23(b), Fla.

Const.    The Legislature did precisely that, enacting the statutory provisions

regulating slot machines in Chapter 551, Florida Statutes (2016), and directing

DPMW to adopt “all rules necessary to implement, administer, and regulate slot

machine gaming as authorized in this chapter.” § 551.103(1), Fla. Stat. (2016).

      Florida’s Administrative Procedure Act, chapter 120, Florida Statutes

(2016), expressly authorizes state agencies such as DPMW to issue declaratory

statements “regarding an agency’s opinion as to 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.” § 120.565(1). The fact that the constitutional

amendment also contains terms (such as “eligible facility”) that are found within

the implementing legislation or agency rules is not a legal basis for the DPMW to

shirk its statutory duty.



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      West Flagler asks us to short-circuit DPMW by deciding the declaratory

statement issues here as part of our jurisdiction to provide “a complete

determination of the cause.” Fla. R. App. P. 9.040(a). We decline to do so,

however, as a matter of judicial restraint and based on the statutory remedies

afforded an appellant upon judicial review of final agency action. Under section

120.68(7)(c), Florida Statutes, (2016), the appellate court “shall remand a case to

the agency for further proceedings” when the correctness of the agency’s action

“may have been impaired by a material error in procedure or a failure to follow

prescribed procedure.”

      In the present case, DPMW denied the petition as a preliminary procedural

matter and never reached the merits or substance of the legal issues presented in

West Flagler’s amended petition. Similarly, DPMW denied as moot the motion to

intervene filed by the cross-appellants without ruling on the issues presented by the

motion. We thus remand the case to DPMW to consider and decide the issues

presented in the amended petition and in the motion to intervene.

      Reversed and remanded for further proceedings in accordance with this

opinion.




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