The Issue The issue is whether Proposed Florida Administrative Code Rule 61D-2.026(4) and (6) is an invalid exercise of delegated legislative authority, pursuant to sections 120.52(8) and 120.56(1)(a), Florida Statutes.
Findings Of Fact Pursuant to chapter 550, Florida Statutes, Petitioner Second Chance operates jai alai games at its facility in Marion County, and Petitioner WFA owns and operates a greyhound permit and summer jai alai permit at its facility in Miami-Dade County. Petitioner WFA also indirectly owns a summer jai alai permit at the Miami Jai Alai in Miami-Dade County and owns partial interests in two jai alai permits operated at the Dania Jai Alai facility in Broward County. Pursuant to chapter 550, Intervenor owns and operates a jai alai permit at its facility in Seminole County, where it conducts live jai alai permits. Petitioners and Intervenor are regulated by the proposed rules that they challenge in these cases. Proposed rule 61D-2.026(4) (the Court Rule) provides: Jai alai games must be conducted on a three-walled court meeting the following requirements: The side wall must be at least 175 feet long and at least 35 feet in height; The front wall and back wall must be at least 35 feet in width and height; The front wall must be made of granite. All courts must have sufficient overhead coverage to ensure for the operation of scheduled performances. All courts must have a live viewing area for games. Proposed rule 61D-2.026(6) (the Roster Rule) provides: "Jai Alai permit holders must utilize a rotational system of at least eight different players or teams." The rulemaking authority cited for the Court Rule and the Roster Rule is sections 550.0251 and 550.105(3) and (10)(a). The law implemented cited for the Court Rule and the Roster Rule is sections 550.0251, 550.105, and 550.70.
The Issue The issue is this case is whether the Respondent, Beacon Hill, Ltd., discriminated against Yvonne Malone (Petitioner) based on her religion in violation of the Florida Fair Housing Act (the Act).
Findings Of Fact The Petitioner is a resident at an apartment complex owned and operated by the Respondent. At the hearing, the Petitioner recited a litany of complaints related to her apartment unit and to the services she has received from the Respondent's staff. Although the Petitioner has previously asserted that the Respondent has discriminated against her based on her religion, the Petitioner testified at the hearing that she had been "harassed" and "abused" by the Respondent's employees and that she did not know the basis for her treatment. The evidence failed to establish that the Respondent, or any person employed by the Respondent, has discriminated against the Petitioner based on her religion. The evidence failed to establish that the Respondent, or any person employed by the Respondent, has treated the Petitioner any differently than any other resident of the apartment complex has been treated. The evidence failed to establish that the Respondent, or any person employed by the Respondent, has "harassed" or "abused" the Petitioner in any manner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief filed by Yvonne Malone. DONE AND ENTERED this 7th day of January, 2014, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 7th day of January, 2014.
The Issue The issues to be determined in this proceeding are: (1) whether PPI, Inc. is entitled to issuance of the summer jai alai permit issued by the Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering, on October 26, 2018; (2) whether any of the following alleged agency statements as articulated by Petitioner, Florida Standardbred Breeders and Owners Association, Inc., are unadopted rules, and (3) 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 to PPI, Inc.2: 2 On January 16, 2019, Petitioner filed a Petition Challenging Agency Statement as an Unadopted Rule and Motion to Consolidate with Pending Case No. 18-6339 ("Rule Challenge Petition"). 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 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; 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. 3 Rule Challenge Petition Exhibit F contains the same information as Exhibit B to the parties' Amended Joint Prehearing Stipulation, which has been incorporated into Finding of Fact paragraph 149 of this Recommended Order. That 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; 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;" 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; That notwithstanding the provisions of section 95.11 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.
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, and slot machine gaming pursuant to section 551.104. 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. Respondent PPI is the applicant for the permit at issue in this proceeding. PPI's business address is 1800 Southwest 3rd Street, Pompano Beach, Florida. 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. 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 Recommended 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 in only 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 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. 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 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. 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. 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. 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. 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 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. 10 Refer to note 9, above. 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-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 paragraph No. 149. 11 This type of wager also is referred to as simulcast as guest. 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 issue of whether a summer jai alai permit issued to PPI would be profitable is not at issue in this proceeding.12 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. 12 As stated by FSBOA's counsel at the final hearing: "what we stipulated to was that they are an entity that's qualified to hold a pari-mutuel permit, and that all the financial requirements, and you'll see the application, we don't want to see their financial documents, but they qualify to hold a pari-mutuel permit." In its Proposed Recommended Order, FSBOA argued that PPI had not demonstrated that its summer jai alai operation would be "profitable." However, the parties stipulated that PPI was, in all respects, a qualified applicant, so that the only issue is whether a summer jai alai permit had been made available under section 550.0745(1). Thus, it is determined that the parties' stipulation included the issue of summer jai alai profitability at Pompano Park. 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.13 13 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 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. 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 situated14 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. 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. 14 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. 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 #141.15 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 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" 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 15 Consistent with the parties' use of terminology in this proceeding, this Recommended Order uses "permit #141" and "Bet Miami" interchangeably, as the context requires. 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, from December 1 through December 31, 2004, and from May 1 through 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, from September 1 through 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, from December 1 through December 31, 2005, and from May 1 through 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, from September 1 through 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 a pari-mutuel wagering handle 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 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 handle16 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 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 550.0745.17 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.18 16 Handle is defined as the aggregate contributions to pari-mutuel pools. § 550.002(13), Fla. Stat. 17 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'"). 18 For purposes of this Recommended 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 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. 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.19 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."20 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 19 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. 20 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. 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."21 "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.22 This type of wager is referred to as "simulcast export."23 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."24 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 21 Refer to the example in note 20. 22 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 wagering pools on the race. 23 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). 24 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 A is not authorized to conduct a pari-mutuel wagering pool on the race that being conducted live at Facility C. 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.25 For purposes of this case, this type of wager is referred to "simulcast rebroadcast as host."26 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.27 For purposes of this case, this type of wager is referred to "simulcast rebroadcast as a guest."28 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, pari-mutuel pools are only formed at the host-permitholder's track where the live race is conducted, pursuant to the annual license that authorizes that permitholder to conduct pari-mutuel pools in that county.29 25 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 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. 26 As stated above, this type of wager is also known as simulcast intertrack as a host. 27 Refer to the example in note 25. 28 As stated above, this type of wager also is known as simulcast intertrack as a guest. 29 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 wagering pool is formed only 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 at races that are conducted, and pools formed, at facilities that are not those of the 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 because both the host and guest tracks "make money"30 on a wager regardless of the type of wager, and because one of the espoused purposes of allowing conversion to summer jai alai 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. 30 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. 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 the smallest play or total pool31 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—still would result in permit #141 having the smallest play or total pool32 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 31 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. 32 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. 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 "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 wager is 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 below 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. Additionally, 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— the smallest play or total pool for that fiscal year. As previously stated, the parties stipulated that the numbers on the chart attached at the end of this Recommended Order, and hereby incorporated into this Finding of Fact, were accurately calculated.33 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). 33 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 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. 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 2005/2006.34 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 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. 34 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. 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 continue 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. As discussed above, PPI applied for, and was granted, the summer jai alai permit that was made available in Broward County as the result of permit #141 having had the smallest play or total pool in Broward County for state fiscal years 2004/2005 and 2005/2006 and declining to convert to summer jai alai. Other than the Division's proposed agency action to issue a summer jai alai permit to PPI, the Division has not issued a summer jai alai permit in Broward County to any other applicant based on state fiscal years 2004/2005 and 2005/2006. Summer Jai Alai Permit Availability For Other Two-Consecutive-Year Periods PPI contends that even if a new summer jai alai permit was not made available in Broward County for state fiscal years 2004/2005 and 2005/2006, other summer jai alai permits were made available pursuant to section 550.07435 due to the same permitholder in Broward County having had the smallest play or total pool for several two-consecutive-state-fiscal-year periods. Thus, PPI contends, it would be entitled to issuance of a summer jai alai permit by virtue of those permits. Specifically, the periods for which PPI contends summer jai alai permits were made available under section 550.074 were years 1990/1991 and 1991/1992; 1986/1987 and 1987/1988; 1985/1986 and 1986/1987; 1984/1985 and 1985/1986; 1983/1984 and 1984/1985; and 1982/1983 and 1983/1984. 35 Section 550.074, the predecessor statute to section 550.0745, was enacted in 1980 and repealed effective July 1, 1992. This statute was substantively identical to section 550.0745, which went into effect on December 16, 1992. See S. Fla. Racing Ass'n v. Dep't of Bus. & Prof'l Reg., 201 So. 3d 57, 62 (Fla. 3d DCA 2015)("the statute that is now section 550.0745 existed in substantively identical fashion as section 550.074"). As discussed below, FSBOA contends that any summer jai alai permits that may have been made available under section 550.074 before it was repealed did not survive that repeal. PPI presented unrebutted evidence, consisting of the Division's pertinent annual reports regarding pari-mutuel pools at licensed facilities, showing that Pompano Park's quarter horse racing permit, permit #535, had the smallest play or total pool in Broward County for state fiscal years 1990/1991 and 1991/1992; 1986/1987 and 1987/1988; 1985/1986 and 1986/1987; 1984/1985 and 1985/1986; 1983/1984 and 1984/1985; and 1982/1983 and 1983/1984. Accordingly, it is determined that a summer jai alai permit was created, pursuant to section 550.074, for each of these two-consecutive-state-fiscal-year periods. In 1991, the legislature passed chapter 91-197, Laws of Florida, which operated to sunset most, but not all, of chapter 550. Pursuant to that legislation, section 550.074 was repealed effective July 1, 1992. In an effort to ensure that pari-mutuel wagering remained legal in Florida pending enactment of a new pari-mutuel statute, the Division adopted emergency rules that went into effect on November 22, 1992.36 The emergency rules authorized, among other things, the limited regulation of the pari-mutuel industry regarding collection of taxes from permitholders, monitoring pari-mutuel pools, issuance of occupational licenses, drug and medication requirements, and authority of event judges and stewards. No evidence was presented at the final hearing showing that the emergency rules specifically addressed the preservation of summer jai alai permits that were made available pursuant to section 550.074 prior to its repeal. In December 1992, the legislature passed chapter 92-348, Laws of Florida, enacting the current version of chapter 550, including section 550.0745, which 36 Most of chapter 550 had been repealed by operation of chapter 91-197, Laws of Florida, by the time the emergency rule was adopted. Thus, it is unclear whether the Division had the statutory authority to adopt these rules; however, it is not necessary to decide that issue in this proceeding. exists to present, as subsequently amended. "New" chapter 550, including section 550.0745, went into effect on December 16, 1992. Chapter 92-348, Laws of Florida, section 67, repealed, in its entirety, chapter 550, as it existed prior to the enactment of "new" chapter 550. Chapter 92-348, Laws of Florida, section 68, stated, in pertinent part: "[t]his Act shall not apply retroactively other than as specifically addressed in section 550.2633(3) and (5) and 550.26353." Id. (emphasis added). Section 550.2633 addressed the distribution of unclaimed interests in, or contributions to, pari- mutuel pools for horseracing. Section 550.26353 retroactively ratified specified pari- mutuel events, and tax credits and exemptions associated with those events. Neither of these statutes addressed summer jai alai permitting under newly- enacted section 550.0745. 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, 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 the 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. Thus, 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.
Conclusions 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. The statute in effect at the time of agency action on an application for a permit or license controls. Lavernia v. Dep't of Prof. Reg., Bd. of Med., 616 So. 2d 53, 53-54 (Fla. 1st DCA 1993). 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
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering enter a final order issuing the summer jai alai permit at issue in this proceeding to PPI, Inc. DONE AND ENTERED 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: Megan S. Silver, Esquire Division of Pari-Mutuel Wagering Department of Business and Professional Regulation, 2601 Blair Stone Road Tallahassee, Florida 32399 (eServed) Bradford J. Beilly, Esquire Beilly and Strohsahl, P.A. 1144 Southeast Third Avenue Fort Lauderdale, Florida 33316 (eServed) John Daniel Strohsahl, Esquire Beilly and Strohsahl, P.A. 1144 Southeast Third Avenue Fort Lauderdale, Florida 33316 (eServed) Leonard M. Collins, Esquire GrayRobinson, P.A. 301 South Bronough Street Suite 600 Tallahassee, Florida 32301 (eServed) Louis Trombetta, Director 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) M. Stephen Turner, Esquire Nelson Mullins Broad and Cassel Suite 400 215 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) James A. Lewis, Esquire Department of Business and Professional Regulation Division of Pari-Mutuel Wagering 2601 Blair Stone Road Tallahassee, Florida 32399-2202 (eServed)
The Issue The issue is whether appellant's application for a conditional use permit should be approved.
Findings Of Fact Based upon the entire record, the following findings of fact are determined: Appellant, Nostimo, Inc. (appellant, applicant or Nostimo), is the owner of Lots 8, 9, 10 and 11, Block 8, Revised Plat of Clearwater Beach Subdivision, located at 32 Bay Esplanade, Clearwater Beach, Florida. The property is subject to the land use requirements codified in the City of Clearwater Code of Ordinances (code or city code). By application filed on April 25, 1989 appellant sought the issuance of a conditional use permit from appellee, City of Clearwater (City or appellee). If approved, the permit would authorize the sale of beer and wine for off-premises consumption by a Pick Kwik Food Store to be constructed on the property under a lease agreement between appellant and Pick Kwik, Inc. Appellant's property is properly zoned for a retail establishment (CB or Beach Commerical), and it needs no further zoning permits from the City in order to convert the existing structures on the property to a convenience store. Indeed, appellant has already received approval for the construction and operation of the store. However, under subsection 137.024(b) of the city code, appellant is required to obtain a conditional use permit because it intends to engage in the sale of packaged beer and wine for off-premises consumption. In order to obtain such a permit the applicant must satisfy a number of criteria embodied in the code. The parties have stipulated that, with the exception of one standard, all other relevant criteria have been met. The disputed standard requires that "the use shall be compatible with the surrounding area and not impose an excessive burden or have a substantial negative impact on surrounding or adjacent uses or on community facilities or services." It is noted that appellant must secure the necessary land use permit from the City before it can obtain the alcoholic beverage license from the Department of Business Regulation, Division of Alcoholic Beverages and Tobacco. The application was considered by the Clearwater Planning and Zoning Board (Board) on June 13, 1989 and denied by a 5-0 vote with one member abstaining. As a basis for the denial, the Board adopted a staff report that concluded that "due to the beach area being saturated with this use (sale of alcoholic beverages), public nuisances requiring police action are taxing community services." It further concluded that the proliferation of this activity "has a substantial negative impact on surrounding or adjacent uses or on community facilities and services, specifically police services in handling nuisances related to alcoholic beverage establishments." Members of the public who testified in opposition to the application expressed concern over increased traffic in the area, the glare of lights from a 24 hours per day establishment, and potential problems arising from customers who will consume the beer and wine during the evening hours. In addition, two letters in opposition to the application were considered by the Board. Finally, besides a presentation by applicant's attorney, two witnesses appeared on behalf of the applicant and established that Pick Wick, Inc. provides security services at its stores, if needed, and training for employees to prevent the sale of alcoholic beverages to minors. The subject property is located on the western side of the intersection of Bay Esplanade and Mandalay Avenue in Clearwater Beach, an elongated strip of land to the west of the mainland portion of the City and separated from the mainland by Clearwater Harbor. Mandalay Avenue runs north and south through the heart of Clearwater Beach and is a principal traffic artery in that part of the community. The avenue narrows from four to two lanes just south of where the store is to be located. Bay Esplanade is a much shorter street and runs in an east-west direction between the Gulf of Mexico and Clearwater Harbor. In general terms, the property is surrounded by mixed uses and include a 7-11 convenience store immediately across the street to the east, motels and rental apartments, a restaurant, retail businesses and resort facilities, residences, public areas and a city fire station. Maps received in evidence more definitively depict the nature of the uses surrounding Nostimo's property. In addition to a number of commercial establishments within the immediate area, there are also tennis courts, a parking area, community boat ramp, soccer field, playground and public park. Finally, the area is replete with apartments, rental units and condominiums, including some directly behind the proposed establishment. Although there are presently no active businesses located on the subject property, the premises were once occupied by a hotel, apartments, hot dog shop and a small lounge that offered both on and off premises consumption of alcohol. The applicant contends that the proposed use is compatible with both the property's former use and the present surrounding area, particularly since a 7-11 convenience store directly across the street has been in business selling beer and wine for the last twenty-five years, and there are several restaurants or motels within a block that sell alcoholic beverages. The applicant added that, in all, there are approximately fifty-three active alcoholic beverage licenses within two miles of the proposed convenience store. At both the Board hearing and final hearing in this cause, the City Police Department offered testimony in opposition to the issuance of the requested permit. According to the uncontradicted testimony of Lt. Frank Palumbo, who is the Clearwater Beach police department district commander, additional noise, vandalism, traffic congestion and congregation of younger people are expected if the permit is issued. This opinion was based upon his law enforcement experience with other convenience stores on the Beach side that sell beer and wine, including another Pick Wick convenience store. Further, Mandalay Avenue is an important north-south traffic artery in Clearwater Beach, and there are no alternative streets for residents and visitors to use to avoid the traffic build-up that will occur around the store. Lieutenant Palumbo disputed the assertion that the lounge that once occupied a portion of the subject property generated substantial numbers of customers and associated traffic and that the new enterprise is actually a downgrade in use. He pointed out that the former lounge was very small, and a congregation of four or five customers at any one time was a "large crowd." In contrast, the police officer distinguished that situation from the proposed store where the sale of beer and wine around the clock is expected to generate larger volumes of traffic and customers, particularly during the evening hours. Finally, it has been Lt. Palumbo's experience that convenience stores that sell beer and wine attract the younger crowd, including minors, during the late hours of the night, and they create noise and sanitation problems for the adjacent property owners. The witness concluded that all of these factors collectively would have a negative impact on "community services" by placing a greater demand on police resources. This testimony was echoed by a city planner who gave deposition testimony in this cause. The nexus between the sale of alcoholic beverages and increased traffic and noise was corroborated by Daniel Baker, the manager of another Pick Wick store and a former employee of the 7-11 store across the street, who recalled that when beer sales stopped at that store at midnight, the noise and traffic also came to a halt. In this regard, it is noted the proposed store will operate twenty-four hours per day. To the above extent, then, the proposed use is incompatible with the requirements of section 137.011(d)(6). Two other witnesses testified at final hearing in opposition to the application. One, who is a member of a church that lies a block from the proposed store, pointed out without contradiction that a playground sits next to the church and is used by area young people, many of whom use bicycles as their means of transportation. She was concerned that if more traffic is generated by the store, it would make access to the playground more hazardous and discourage the children from using the facility. The second member of the public is concerned that the store will be incompatible with the surrounding area. This is because much of the neighboring area is made up of public areas, apartments, rental units or condominiums, and he contended an establishment selling alcoholic beverages would be inconsistent with those uses.
The Issue Whether the Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering (Respondent or Division), should deny West Flagler Associate, Ltd.’s (Petitioner or West Flagler) June 30, 2015, and July 1, 2015, applications for new summer jai alai permits under section 550.0745, Florida Statutes.
Findings Of Fact The Division is the state agency charged with regulating pari-mutuel wagering activities in Florida pursuant to chapter 550. West Flagler is the owner of pari-mutuel permits and is authorized to conduct pari-mutuel pools on exhibition sports in Miami-Dade County pursuant to chapter 550. There are seven pari-mutuel permits for pari-mutuel pools on exhibition sports in Miami-Dade County. The permitholders are South Florida Racing Association, LLC (Hialeah Park)(“SFRA”); Fronton Holdings, LLC (Miami Jai Alai); Summer Jai Alai Partnership; West Flagler Associates, Ltd. (Flagler Dog Track); Calder Race Course, Inc.; Tropical Park, LLC; and West Flagler Associates, Ltd. (Magic City Jai Alai). Summer Jai Alai Partnership is the holder of a summer jai alai permit. West Flagler currently possesses a summer jai alai permit in Miami-Dade County. On June 30, 2015, West Flagler filed the June Application, pursuant to section 550.0745, for a “new permit” to conduct summer jai alai in Miami-Dade County. West Flagler’s June Application was based on its conclusion that a new summer jai alai permit was available because SFRA had the smallest total pool or handle in Miami-Dade County for two consecutive fiscal years, i.e., state fiscal years 2012/2013 and 2013/2014, and that SFRA declined to convert its pari-mutuel permit to a permit to conduct summer jai alai. On July 1, 2015, West Flagler filed the July Application, pursuant to section 550.0745, for a “new permit” to conduct summer jai alai in Miami-Dade County. West Flagler’s July Application was based on its conclusion that a new summer jai alai permit was available because SFRA again had the smallest total pool or handle in Miami-Dade County for two consecutive fiscal years, i.e., state fiscal years 2013/2014 and 2014/2015, and that SFRA again declined to convert its pari- mutuel permit to a permit to conduct summer jai alai. On July 14, 2015, the Division denied the June Application on the grounds that there was not a summer jai alai permit available for fiscal years 2012/2013 and 2013/2014 because SFRA did not have the smallest play or total pool in Miami-Dade County for those two consecutive years. The Division maintains that West Flagler (Magic City Jai Alai) had the smallest total pool in 2012/2013 and Summer Jai Alai Partnership had the smallest total pool in 2013/2014. That basis for the denial remains the position of the Division in this proceeding. On December 7, 2015, the Division issued an amended notice of denial that modified the denial of the July Application from one based on there being no lowest handling pari-mutuel permitholder for consecutive fiscal years 2013/2014 and 2014/2015, to one based on the grounds that 1) “West Flagler is incapable of converting its summer jai alai permit to a summer jai alai permit because there would not be an actual conversion as contemplated by statute”; and 2) “West Flagler has not shown that the issuance of a summer jai alai permit to West Flagler, which already holds a summer jai alai permit, would generate an increase in total state revenue over the revenue West Flagler generates under its current, identical permit.” West Flagler’s June Application does not seek to convert its existing summer jai alai permit to a summer jai alai permit. Rather, the application is predicated upon the creation of a new summer jai alai permit when SFRA declined to convert its pari-mutuel permit to a permit to conduct a summer jai alai fronton. West Flagler’s July Application does not seek to convert its existing summer jai alai permit to a summer jai alai permit. Rather, the application is predicated upon the creation of a new summer jai alai permit when SFRA declined to convert its pari-mutuel permit to a permit to conduct a summer jai alai fronton. The disagreement between the parties regarding the June Application revolves around whether “simulcast export” wagers should be included in calculating a permitholder’s “play or total pool within the county” for purposes of section 550.0745(1). The Division argues that a permitholder’s total pool includes live wagers, intertrack wagers, and simulcast export wagers. West Flagler argues that a permitholder’s total pool includes only live wagers and intertrack wagers.1/ A live wager is a wager accepted at a permitted Florida facility on a race or game performed live at that facility. Permitholders derive income, in the form of a commission, on live wagers placed at their facilities. Permitholders pay taxes on live wagers. An intertrack wager is a wager accepted at a permitted Florida facility on a race or game transmitted from and performed live at, or simulcast rebroadcast from, another permitted Florida facility. Permitholders derive income, in the form of a commission, on wagers placed at other Florida facilities on races or games transmitted from the permitholder’s facilities. Permitholders pay taxes on intertrack wagers. A simulcast wager is a wager placed at a Florida facility on an out-of-state race transmitted to the Florida facility. Permitholders pay taxes on simulcast wagers. An intertrack simulcast wager is a wager placed at a Florida guest track on an out-of-state race transmitted by the out-of-state track to a Florida host track, and then re- transmitted by the Florida host track to the Florida guest track. Permitholders pay taxes on intertrack simulcast wagers. A simulcast export wager is a wager accepted at an out-of-state facility on a race or game performed live at a permitted Florida facility. Permitholders derive income, in the form of a commission, on simulcast export wagers accepted by out-of-state facilities on races or games transmitted from the permitholder’s facilities. The Division does not know the commission structure between the permitholders and out-of-state facilities. Permitholders do not pay taxes on simulcast export wagers, and the state receives no revenue from simulcast export wagers. In sum, live wagers, intertrack wagers, simulcast wagers, and intertrack simulcast wagers are those placed at Florida pari-mutuel facilities, and subject to Florida taxation. Simulcast export wagers are those placed on Florida events at out-of-state facilities, and not subject to Florida taxation. Licensed betting facilities across the country -- and generally across the world -- contract with a licensed totalisator (the “tote”)2/ by which all wagers are accounted for. Data on all wagers placed on a hosting permitholder’s event (with uncommon exceptions when an out-of-state facility receiving a hosting permitholder’s simulcast broadcast forms its own pool) are sent by the tote to the hosting permitholder to be included in its total price pool, and used to determine payouts on winning wagers. The totes also capture simulcast export wagers for use in calculating the commission paid by the guest tracks. A permitholder’s pool amounts are reported to the Division by the tote company on a daily basis. The daily tote report includes live, simulcast, intertrack, intertrack simulcast, and simulcast export wagers. The daily tote reports are reviewed by the Division’s auditing section to ensure that wagers are accounted for and paid. The Division maintains a central monitoring system by which it captures the daily amounts for all wagers from the daily tote reports, and compiles them up to produce a cumulative report. A permitholder’s pool amounts are also reported to the Division directly by the permitholder in monthly pari-mutuel reports, and annual financial statements. The monthly reports and annual financial statements are reviewed by the Division’s revenue section. Since simulcast export wagers are not taxed by Florida, the Division’s monthly report and annual financial statement forms do not include simulcast export wagers as part of the facility’s handle. Due to the combination of low overall handles, and tax credits available for net operating losses, jai alai facilities (as opposed to cardrooms operating therein) do not generate any tax revenues for the state. Thus, the only revenues derived by the state from jai alai facilities are the $40 per game daily license fees and 15-percent admission tax required by section 550.0951. The parties stipulated that the Third District Court of Appeal considered only live wagers and intertrack wagers in its analysis of whether the “smallest play or total pool within the county” included only wagers physically placed within Miami- Dade County, as reflected in the Court’s opinion in South Florida Racing Association v. Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering, So. 3d , 2015 Fla. App. LEXIS 11334, 2015 WL 4546935 (Fla. 3d DCA July 29, 2015).3/ If simulcast export wagers are excluded from a pari- mutuel facility’s play or total pool within Miami-Dade County, SFRA had the smallest total handle in Miami-Dade County for the 2012/2013 state fiscal year. If simulcast export wagers are included in a pari- mutuel facility’s play or total pool within Miami-Dade County, West Flagler Associates, Ltd. (Magic City Jai Alai) had the smallest total handle in Miami-Dade County for the 2012/2013 state fiscal year. If simulcast export wagers are excluded from a pari- mutuel facility’s play or total pool within Miami-Dade County, SFRA had the smallest total handle in Miami-Dade County for the 2013/2014 state fiscal year. If simulcast export wagers are included in a pari- mutuel facility’s play or total pool within Miami-Dade County, Summer Jai Alai Partnership had the smallest total handle in Miami-Dade County for the 2013/2014 state fiscal year.4/ If simulcast export wagers are excluded from a pari- mutuel facility’s play or total pool within Miami-Dade County, SFRA had the smallest total handle in Miami-Dade County for the 2014/2015 state fiscal year. If simulcast export wagers are included in a pari- mutuel facility’s play or total pool within Miami-Dade County, Summer Jai Alai Partnership had the smallest total handle in Miami-Dade County for the 2014/2015 state fiscal year. Regardless of whether out-of-state simulcast export wagers are included in the calculation of facilities’ “play or total pool,” a single pari-mutuel facility (either SRFA or Summer Jai Alai Partnership) had the smallest play or total pool within Miami-Dade County for the consecutive 2013/2014 and 2014/2015 state fiscal years. The Division did not notify West Flagler of any apparent errors or omissions in its July Application. The Division did not request that West Flagler provide any additional information with its July Application.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that West Flagler Associate, Ltd.’s, June 30, 2015, and July 1, 2015, applications for new summer jai alai permits be DENIED. DONE AND ENTERED this 20th day of June, 2016, in Tallahassee, Leon County, Florida. S E. GARY EARLY 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 20th day of June, 2016.
The Issue The issue in this case is whether a development order (Resolution No. 233- 1991) issued by Monroe County on June 26, 1991, to Key Largo Associates, Ltd., is inconsistent with Chapter 380, Florida Statutes, the Monroe County Comprehensive Plan and Land Use Regulations, and/or whether it violates a Joint Stipulation of Settlement previously executed by the Department of Community Affairs ("DCA"), Monroe County (the "County"), and Key Largo Associates, Ltd.'s predecessor in title.
Findings Of Fact Based upon the evidence adduced at the hearing and the entire record in this proceeding, the following findings of fact are made: DCA is the State Land Planning Agency charged with the responsibility to administer the provisions of Chapter 380, Florida Statutes, and the regulations promulgated thereunder. Monroe County is a political subdivision of the State of Florida and is responsible for issuing development orders for development in unincorporated Monroe County. The County issued the Development Order which is the subject of this proceeding. Most of Monroe County, including the subject property, is within the Florida Keys Area of Critical Concern as designated in Sections 380.05 and 380.0552, Florida Statutes. Development orders issued by a local government agency for an area of critical state concern are subject to review by DCA pursuant to Section 380.07, Florida Statutes. On April 8, 1985, DCA, Monroe County, and I. D. Properties, the previous owner of the subject property, executed a Joint Stipulation of Settlement regarding DCA's challenge to a prior development order for the subject property. That Joint Stipulation of Settlement required the preservation of certain tropical hammock on the site including Paradise Tree hammock. After executing the Joint Stipulation of Settlement, I. D. Properties quitclaimed its interest in the site to Key Largo Associates, Ltd. Key Largo Associates, Ltd. proceeded to seek approval from Monroe County to develop the property inconsistent with the terms of the Joint Stipulation of Settlement. Those efforts resulted in the Development Order which is the subject of this case. The County Commission issued the Development Order granting a major conditional use permit for the Project to Key Largo Associates, Ltd., after being ordered to do so by the Circuit Court for Monroe County. The Development Order purports to authorize the complete elimination of existing tropical hammock on the site including the Paradise Tree hammock. The Development Order is inconsistent with the Monroe County Comprehensive Plan and the Land Development Regulations adopted thereunder. In addition, the Development Order is contrary to the terms of the Joint Stipulation of Settlement.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Land and Water Adjudicatory Commission enter a final order which sustains the appeal filed by the Department of Community Affairs and which rescinds the issuance of Monroe County Resolution No. 233- 1991. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 18th day of August 1993. J. STEPHEN MENTON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of August, 1993. COPIES FURNISHED: Terrell K. Arline Assistant General Counsel Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 Betty J. Steffens, Esquire McFarlain, Wiley, Cassedy & Jones Post Office Box 2174 Tallahassee, Florida 32316-2174 Blackwater Associates Partnership 7225 S.W. 108th Terrace Miami, Florida 33156 Ray Parker Parker Real Estate 2028 North Dixie Highway Fort Lauderdale, Florida 33305 Linda Loomis Shelley, Secretary Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 G. Steven Pfeiffer General Counsel Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 David K. Coburn, Secretary FLWAC Exec. Office of the Governor 311 Carlton Bldg. Tallahassee, Florida 32301
The Issue Whether Petitioner was subjected to housing discrimination by Respondent based on Petitioner's race, African-American, in violation of the Florida Fair Housing Act.
Findings Of Fact Petitioner Miguel Johnson is an African-American male and, therefore, belongs to a class of persons protected from discrimination under the Florida Fair Housing Act, Sections 760.20 through 760.37, Florida Statutes (2009). He filed a complaint for housing discrimination against Riviera Towers at 6896 Abbott Avenue in Miami Beach. Respondent Riviera Terrace Apartments (Riviera Terrace) was apparently erroneously named Riviera Towers in the complaint and in the style of this case. Notice of that error was given by the owner, Arie Markowitz, and in the absence of any indication that Riviera Terrace is a corporate entity, Mr. Markowitz is also added as a Respondent. The style has been corrected to reflect these corrections. Riviera Terrace, 6890 Abbott Avenue, Miami Beach, Florida, 33141, is a 20-unit apartment complex. Mr. Johnson thought that the complex has 22 units, but there is no evidence to support his thinking. Contrary to his request, the undersigned has no independent investigative powers and must accept the evidence in the record. According to his records, Mr. Johnson, on March 17, 2009, telephoned a number he saw on a "For Rent" sign at Riviera Terrace. A woman identified as Diana Miteff answered the telephone. Mr. Johnson said Ms. Miteff identified herself as the manager of the complex. The telephone records indicate that the conversation lasted one minute. Mr. Johnson testified that Ms. Miteff told him to call back later. Mr. Johnson telephoned Ms. Miteff again on March 21, 2009, and his records indicate that they talked for 8 minutes. Mr. Johnson testified that Ms. Miteff told him about the security deposit, that the rent for a one bedroom apartment was $900 a month, and that she had some vacant efficiencies. Mr. Johnson testified that a friend of his, Pedro Valdes, lives in the same complex and that together they met with Ms. Miteff the day after Mr. Johnson talked to her on the telephone, and saw a vacant efficiency apartment. According to Mr. Johnson, Ms. Miteff told him, after seeing him, that there were no vacancies. Ayesha Azara, Mr. Johnson's wife, testified that she made another unsuccessful attempt to rent a unit in Riviera Terrace in May 2009. She had no information in March 2008, except to say tht Ms. Miteff claimed to be the manager and told her the building was for elderly people. Pedro Valdes testified that he lives in Riviera Towers and gave his address as 6896 Abbott Avenue. He said that the "For Rent" sign for Riviera Terrace is not always posted in front of the complex. Mr. Markowitz is the owner of Riviera Terrace at 6890 Abbott Avenue. He testified that he is also the manager and that Ms. Miteff is a tenant. He uses her telephone number on the "For Rent" sign because he does not speak Spanish. The apartments are government-subsidized Section 8 housing. The only vacant efficiency in March 2008 was a unit for which he already had a written lease, but the tenant could not move in until after a government-required inspection. He also testified that his tenants are not all Caucasians and not all elderly. Ms. Miteff confirmed that she has been a resident of Riviera Terrace for 20 years. She concedes that she told Mr. Johnson's wife that the people in the complex are very quiet and mostly old people. Mr. Johnson's claim of discrimination based on race is not supported by the evidence, which is contradictory with regard to the name and address of the property, and because there were no vacant apartments at Riviera Terrace in March 2008.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: The Petition for Relief be dismissed. DONE AND ENTERED this 15th day of October, 2009, in Tallahassee, Leon County, Florida. S ELEANOR M. HUNTER 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 15th day of October, 2009. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Louis A. Supraski, Esquire Louis A. Supraski, P.A. 2450 Northeast Miami Gardens Drive 2nd Floor North Miami Beach, Florida 33180 Miguel Johnson 916 West 42nd Street, Apt. 9 Miami Beach, Florida 33140 Miguel Johnson C/O Robert Fox 1172 South Dixie Highway Coral Gables, Florida 33146 Diana Mittles Riviera Terrace Apartments 6896 Abott Avenue Miami Beach, Florida 33141
The Issue Whether the FHBPA, FTBOA, and OBS have standing to challenge the Division’s issuance of a new summer jai alai permit to Calder; and, if so, whether FHBPA’s petition and FTBOA’s and OBS’s motions to intervene were timely; and, if so, whether the Division properly granted a new summer jai alai permit to Calder pursuant to section 550.0745(1), Florida Statutes (2019), and Florida Administrative Code Rule 61D-4.002.
Findings Of Fact Parties/Standing The Division is the agency charged with regulating pari-mutuel wagering and issuing pari-mutuel permits under the provisions of chapter 550, including section 550.0745 pertaining to summer jai alai permits, and rule 61D-4.002. Calder is a pari-mutuel permitholder authorized to operate thoroughbred horse racing and conduct pari-mutel pools on exhibition sports in Miami-Dade County pursuant to chapter 550. Calder has been a pari- mutuel permitholder authorized to operate thoroughbred horse racing in Miami-Dade County since 1971. The Division issued a new summer jai alai permit to Calder on February 9, 2018. The Division did not provide FHBPA, FTBOA, or OBS with formal notice that Calder had applied for a new summer jai alai permit or that the Division intended to issue a new summer jai alai permit to Calder. The Division subsequently licensed Calder to operate its summer jai alai permit in fiscal years 2018/2019 and 2019/2020. Calder is currently licensed to operate both summer jai alai and thoroughbred racing at its Miami-Dade County facility pursuant to the permits and licenses issued by the Division to Calder for thoroughbred horse racing and summer jai alai. Calder is also currently licensed to operate slot machine gaming. Calder receives approximately $85,000,000 in annual gross revenues from slot machine gaming, making this the most profitable activity Calder conducts at its facility. FHBPA is not a pari-mutuel permitholder. FHBPA is a Florida not-for- profit corporation and an association whose membership consists of a majority of horse owners and trainers (approximately 5,000 to 6,000 "horsemen"), whose horses race at thoroughbred race meets operated by the licensed thoroughbred permitholders in South Florida. Pursuant to section 551.104(10)(a)1., Florida Statutes, no slot machine license or renewal license can be issued to an applicant with a thoroughbred horse racing pari-mutuel permit unless the applicant has on file with the Division a binding, written agreement with FHBPA governing the payment of purses on live thoroughbred horse races conducted at the licensee’s pari- mutuel facility. FHBPA and Calder have a contractual agreement, whereby Calder must run 40 days of thoroughbred horse races under its thoroughbred license. Under the current agreement between Calder and FHBPA, Calder is required to pay FHBPA a sum equal to ten percent of Calder’s gross slot machine revenues to be used for purses. This amounts to approximately $9,000,000 that FHBPA receives from Calder on an annual basis. This contractual agreement expires in 2020. Since 2014, Calder has satisfied its obligation to run a 40-day thoroughbred racing schedule by contracting with a third party, Gulfstream Park, to run races between October and November of each year. FTBOA is not a pari-mutuel permitholder. FTBOA is a Florida not-for- profit corporation, and the statewide trade association representing the interests of thoroughbred breeders and owners in Florida. Horses owned and/or bred by FTBOA members participate in the thoroughbred horse races at Calder’s race course. FTBOA is designated in section 550.2625(3)(h) as the administrator of the thoroughbred breeders’ awards program established by the Florida Legislature in sections 550.26165 and 550.2625(3). As part of this program, FTBOA is responsible for the payment of breeders’ awards on thoroughbred races conducted in Florida. Pursuant to section 550.26165(1), the purpose of breeders’ awards is to "encourage the agricultural activity of breeding and training racehorses in this state." Pursuant to section 551.104(10)(a)1., no slot machine license or renewal license can be issued to an applicant with a thoroughbred horse racing pari- mutuel permit unless the applicant has on file with the Division a binding, written agreement with FTBOA governing the payment of breeders’, stallion, and special racing awards on live thoroughbred races conducted at the licensee’s pari-mutuel facility. FTBOA receives approximately $1,500,000 from Calder each year in breeders’ awards as a result of the Calder racing handle and slot machine revenue. OBS holds a limited intertrack wagering pari-mutuel permit, pursuant to section 550.6308, that authorizes it to conduct intertrack horse racing at its Ocala facility. OBS also holds a non-wagering horse racing permit, pursuant to section 550.505, and a thoroughbred horse sales license, pursuant to chapter 535, Florida Statutes. OBS sells thoroughbred horses at its facility located in Ocala. OBS is the only licensed Florida-based thoroughbred auction sales company in Florida, and it conducts five thoroughbred horse auctions annually. OBS has no pari-mutuel permits located in Miami-Dade County, Florida. On July 31, 2018, Calder filed a Petition for Declaratory Statement with the Division regarding whether it can discontinue the operation of its thoroughbred races and instead operate a full schedule of jai alai performances in order to maintain its eligibility to continue to conduct slot machine gaming. In its petition, Calder made clear its intention to discontinue live thoroughbred horse racing, stating: "Calder desires to discontinue live thoroughbred racing and to obtain a license to operate a full schedule of live jai alai games under its summer jai alai permit. Calder intends on conducting live jai alai games at the same physical location or piece of property where it currently conducts thoroughbred racing." On October 23, 2018, the Division issued its Final Order Granting Declaratory Statement, concluding that Calder may substitute jai alai games in lieu of live horse racing. In its Final Order, the Division also granted FTBOA’s and OBS’s motions to intervene, concluding that FTBOA met its burden of demonstrating associational standing, and that OBS demonstrated its standing pursuant to Agrico Chemical Company v. Department of Environmental Regulation, 406 So. 2d 478 (Fla. 2d DCA 1981). The Division’s Final Order was affirmed on appeal in Florida Thoroughbred Breeders’ Association, Inc. v. Calder Race Course, Inc., 283 So. 3d 843, 845 (Fla. 1st DCA 2019). Calder intends to replace its thoroughbred permit with its jai alai permit as the predicate for maintaining its slot machine gaming permit. An incentive for Calder to substitute its jai alai permit for its thoroughbred permit is that if it stops racing horses after December 2020, Calder will be under no obligation to share the millions of dollars in revenue it receives through its slot machines with FHBPA or FTBOA. FHBPA, FTBOA, and their members will be substantially affected if Calder is allowed to use a summer jai alai permit in place of thoroughbred racing to qualify for the continued operation of its slot machine facility. Millions of dollars that would otherwise be available to FHBPA, FTBOA, and their members through the payment of purses and awards from thoroughbred racing will be lost if Calder is permitted to substitute its underlying pari- mutuel activity from racing thoroughbreds to conducting jai alai games. FHBPA’s and FTBOA’s substantial injury is of a type or nature which this proceeding is designed to protect. Likewise, OBS will be substantially affected if Calder is allowed to use a summer jai alai permit in place of thoroughbred racing. The demand to breed and purchase racehorses, and the value of breeding and selling thoroughbred horses, will decrease significantly as a consequence of Calder discontinuing thoroughbred horse racing and replacing the races with summer jai alai games. In addition, as a guest track, OBS retains seven percent of the wagers placed at OBS on thoroughbred races in Florida. OBS intertrack wagering generally handles approximately $1,000,000 on thoroughbred races conducted at Calder and Tropical Park, which directly results in revenue to OBS. OBS’s substantial injury is of a type or nature which this proceeding is designed to protect. Calder’s Summer Jai Alai Permit Application and the Division’s Proper Calculation of "Play or Total Pool" Under Section 550.0745(1) On August 31, 2017, Calder submitted an application to the Division for the issuance of a new summer jai alai permit pursuant to section 550.0745(1). The parties stipulate that, at all times material hereto, Calder was a qualified applicant as to all statutory requirements, but for the dispute as to whether a summer jai alai permit was "made available" pursuant to the second sentence in section 550.0745(1). Section 550.0745(1) provides, in pertinent part, as follows: 550.0745 Conversion of pari-mutuel permit to summer jai alai permit.- 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 mutual 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 during the summer season commencing on May 1 and ending on November 30 of each year on such dates as may be selected by such permittee for the same number of days and performances as are allowed and granted to winter jai alai frontons within 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. Accompanying Calder’s application was a cover letter stating that the application was for the summer jai alai permit associated with state fiscal years 2005/2006 and 2006/2007. The determination of whether the Division properly granted Calder a new summer jai alai permit pursuant to section 550.0745(1) turns on whether a new summer jai alai permit was "made available" for issuance in Miami- Dade County associated with state fiscal years 2005/2006 and 2006/2007. Whether a new summer jai alai permit was made available, in turn, centers on whether there was a single, pari-mutuel permitholder with the "smallest play or total pool" within the county for the two consecutive fiscal years of 2005/2006 and 2006/2007. FHBPA, FTBOA, and OBS maintain that no new summer jai alai permit was made available for issuance in Miami-Dade County for state fiscal years 2005/2006 and 2006/2007, because there was no single Miami-Dade permitholder that had the "smallest play or total pool" in Miami-Dade County during those two consecutive fiscal years. The disagreement between the parties concerning the existence of an available permit with the "smallest play or total pool" in Miami-Dade for the fiscal years 2005/2006 and 2006/2007 centers on their different methods of interpreting section 550.0745(1) and disagreement regarding the types of wagers the Division must use in its calculation of a permitholder’s "play or total pool" pursuant to section 550.0745(1). For purposes of this case, the various types of wagers are summarized as follows: Wagers placed at a permitholder’s facility into the pool conducted by the permitholder on its own live performance are called "live on-track wagers." In addition to wagers placed at a particular facility on its live races or games, bettors may place wagers on races or games occurring offsite through intertrack wagering, which allows bettors at a guest-permit facility in Florida to bet on a race or game transmitted from and performed live at another host- permit facility in Florida. The facility holding the live event is referred to as the "host" track, and the facility taking the wager on the event being held elsewhere is referred to as the "guest" track. Wagers placed at the facility of an out-of-state entity on a live event conducted by a Florida host-permitholder are called "simulcast export wagers." Wagers placed at the facility of a Florida permitholder on a live event occurring at an out-of-state facility are called "simulcast import wagers." Wagers placed at the facility of a Florida guest permitholder on a live event, conducted at an out-of-state facility that is being rebroadcast through a Florida host permitholder’s facility to the Florida guest-permitholder’s facility, are called "intertrack simulcast as a guest." The Florida facility rebroadcasting the out-of-state signal is the "intertrack simulcast in-state host." The Division’s calculations of "smallest play or total pool" of permitholders in Miami-Dade County for the two consecutive fiscal years of 2005/2006 and 2006/2007 included the following three types of wagers, only: (1) live wagers; (2) intertrack wagers (a/k/a intertrack wagers as a host); and (3) simulcast export wagers. The Division did not include intertrack wagers as a guest, simulcast import wagers, simulcast intertrack as a guest wagers, or simulcast intertrack as a host wagers in its calculations. In the state fiscal years 2005/2006 and 2006/2007, five or more pari- mutuel permitholders were authorized and licensed by the Division to conduct pari-mutuel pools on exhibition sports in Miami-Dade County. None of them applied to convert their permits to summer jai alai permits. The Division initially determined that West Flagler had the "smallest play or total pool" of permitholders in Miami-Dade County for the state fiscal years 2005/2006 and 2006/2007, and therefore, concluded that a summer jai alai permit was made available in Miami-Dade County. On February 9, 2018, based on the Division’s determination that Calder was a qualified applicant under chapter 550, and the rules promulgated thereto, and that a permit was available in Miami-Dade County, the Division approved Calder’s application and issued Calder a summer jai alai permit. On November 18, 2018, Calder received an operating license to conduct a full schedule of summer jai alai performances in May and June 2019. On December 9, 2018, the Division received an e-mail from FHBPA’s counsel regarding "Bet Miami," a greyhound dog racing permitholder located in Miami-Dade County, which was authorized to conduct pari-mutuel pools on exhibition sports in both Miami-Dade and Broward Counties in the state fiscal year 2005/2006, and in Miami-Dade County in the state fiscal year 2006/2007. In response to this e-mail, the Division reviewed its records, confirmed the dates that "Bet Miami" operated in Miami-Dade County in the state fiscal year 2005/2006, and calculated the amount that "Bet Miami" pooled in Miami-Dade County in this fiscal year. The Division also reviewed the operating licenses for each of the permitholders in Miami-Dade and Broward Counties and confirmed that "Bet Miami" operated in Miami-Dade County during the entire fiscal year of 2006/2007. The Division corrected its data to reflect that "Bet Miami," in fact, had the "smallest play or total pool" in Miami-Dade County for fiscal years 2005/2006 and 2006/2007. The Division now takes the position that "Bet Miami" had the "smallest play or total pool" in Miami-Dade County for the fiscal years 2005/2006 and 2006/2007.1 "Bet Miami" declined to convert its greyhound dog racing permit to a summer jai alai permit. The "Bet Miami" permit was never converted nor was an application to convert the "Bet Miami" permit to a summer jai alai permit, pursuant to section 550.0745(1), ever received by the Division. Calder built a jai alai fronton in Miami-Dade County and conducted its first jai alai meet in May and June 2019, pursuant to its operating license. 1 There is no dispute over the authenticity and accuracy of the financial information supplied by the Division’s annual reports or of the authenticity and accuracy of the "simulcast export" figures supplied by the Division. On May 15, 2019, Calder received an operating license to conduct a full schedule of jai alai performances in August and September 2019. FHBPA, FTBOA, and OBS contend that the Division erred in failing to consider all the various types of wagers in its calculation of "smallest play or total pool." According to FHBPA, FTBOA, and OBS, had the Division considered all the various types of wagers, no permit would be available for the fiscal years 2005/2006 and 2006/2007. Based on the persuasive evidence presented at hearing, the Division properly considered only live on-track wagers, intertrack wagers, and simulcast export wagers in its calculations of "smallest play or total pool" under section 550.0745(1). This is because pari-mutuel pools are only formed at the host permitholder’s track where the live race is conducted, pursuant to the annual license that authorizes that permitholder to conduct pari-mutuel pools in that county. Had the Division included the other types of wagers (i.e., intertrack wagers as a guest, simulcast import wagers, simulcast intertrack as a guest wagers, or simulcast intertrack as a host wagers) in its calculations, the handle for these various wager types would be counted twice--at the host and guest tracks. Double-counting the wagering handle would result in the Division substantially overstating the amount of handle received by permitholders.2 The Division properly found that "Bet Miami" had the "smallest play or total pool" based on its calculation of the permitholders’ in Miami-Dade 2 All wagering data is compiled by a totalizator system, such as AmTote, which calculates the overall amount of "handle" collected by each pari-mutuel facility for each transaction. The Division utilizes a sub-system called "Central Monitoring System" ("CMS"), which captures the totalizator wagering data and applies it to a racing monitoring system to calculate the overall handle from each pari-mutuel facility. The Division uses the CMS report to calculate the total amount of wagering handle pooled by a facility in state fiscal years, and together with a review of the pari-mutual licenses, determines whether a summer jai alai permit was "made available" in that county for the purpose of section 550.0745(1). "'Handle' means the aggregate contributions to pari-mutuel pools." §550.002(13), Fla. Stat. Handle is not equivalent to revenue or profitability, and a facility’s revenue has no impact on the calculation of a facility’s play or total pool. County live wagers, intertrack wagers as a host, and simulcast export wagers for the two consecutive fiscal years 2005/2006 and 2006/2007.3 Calder’s Application Complies with rule 61D-4.002 The parties stipulate that Calder was a qualified applicant as to all rule requirements, but for the dispute as to whether it has complied with rule 61D-4.002. Rule 61D-4.002 provides, in pertinent part, as follows: 61D-4.002 Evaluating a Permit Application for a Pari-Mutuel Facility. In evaluating a permit application, the division shall deny any application where the applicant fails to establish the following criteria: Financial profitability of the prospective permitholder as derived from the assets and liabilities of the applicant; the existence of any judgment or current litigation, whether civil, criminal, or administrative; the type of pari-mutuel activity to be conducted and desired period of operation; and net income projected over the first three years of operation with the permit. If the applicant is able to show any profitability as outlined in this paragraph, the Division will review the following criteria in paragraph (b). That the issuance of the permit will preserve and protect the pari-mutuel revenues of the state by generating an increase of total state revenue. In determining the financial profitability of an applicant, the Division evaluates the applicant’s overall financial situation, including its total assets and liabilities. The Division does not measure financial profitability by simply looking at the prospective pari-mutuel activity to be conducted pursuant to the permit application. 3 As discussed more fully in the Conclusions of Law below, the Division’s method of calculating the "smallest play or total pool" for purposes of section 550.0745(1) is consistent with the clear, unambiguous, and plain language of section 550.0745(1), and Florida appellate decisions. In the instant case, Calder demonstrated its profitability as derived from its assets and liabilities. Calder submitted financial statements, annual reports, balance sheets, and tax reports. The uncontroverted evidence adduced at hearing demonstrates that Calder is a financially stable and profitable company. As to the existence of any judgment or current litigation, whether civil, criminal, or administrative, Calder submitted a list of its active litigation. As to the type of pari-mutuel activity to be conducted and the desired period of operation, Calder provided the information on its application. As to the net income projected over the first three years of operation with the permit, Calder submitted an initial pro forma. The Division sent Calder a deficiency letter following its review of the initial pro forma. In response, Calder submitted an amended pro forma showing the projected net income derived from the operation of the permit over the first three years. Ms. Swain, the Division’s program administrator, testified that the amended pro forma included $32,329 in year one for projected live gaming taxes to the State, which is not unreasonable. The amended pro forma also included additional amounts for projected intertrack gaming taxes to the State and an additional $72,000 to the State each year for projected license fees. As Ms. Swain persuasively testified, the amounts paid by Calder to the State of Florida in taxes and license fees over the first three years of operation of the permit would result in an increase in state revenues. These tax revenues and license fees would not be available to the State of Florida without the issuance of the summer jai alai permit to Calder.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that that the Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering, enter a final order approving Calder Race Course, Inc.’s, application for a new summer jai alai permit and subsequent licenses.6 6 FHBPA, FTBOA, and OBS challenge the issuance of Calder’s operating licenses for fiscal years 2018/2019 and 2019/2020 based solely on the alleged invalidity of the underlying summer jai alai permit. Because Calder is entitled to the summer jai alai permit, it is also entitled to the operating licenses. DONE AND ENTERED this 7th day of April, 2020, in Tallahassee, Leon County, Florida. S DARREN A. SCHWARTZ 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 7th day of April, 2020. COPIES FURNISHED: Megan S. Silver, Esquire Department of Business and Professional Regulation 2601 Blair Stone Road Tallahassee, Florida 32399 (eServed) Bradford J. Beilly, Esquire Beilly and Strohsahl, P.A. 1144 Southeast Third Avenue Fort Lauderdale, Florida 33316 (eServed) Wilbur E. Brewton, Esquire Brewton Plante, P.A. 215 South Monroe Street, Suite 825 Tallahassee, Florida 32301 (eServed) Daniel Hernandez, Esquire Shutts & Bowen LLP 4301 West Boy Scout Boulevard, Suite 300 Tampa, Florida 33607 (eServed) Tamara S. Malvin, Esquire Akerman LLP 350 East Las Olas Boulevard, Suite 1600 Fort Lauderdale, Florida 33301 (eServed) Raymond Frederick Treadwell, General Counsel Office of the General Counsel Department of Business and Professional Regulation 2601 Blair Stone Road Tallahassee, Florida 32399-2202 (eServed) Brittany Adams Long, Esquire Radey Law Firm, P.A. 301 South Bronough Street, Suite 200 Tallahassee, Florida 32301 (eServed) Johnny P. ElHachem, Esquire 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) Louis Trombetta, Director Division of Pari-Mutuel Wagering Department of Business and Professional Regulation 2601 Blair Stone Road Tallahassee, Florida 32399 (eServed)
The Issue The issue is whether Respondent violated the Fair Housing Act by denying Petitioners financial assistance on account of their national origin and Mr. Rodriguez's disability.
Findings Of Fact Petitioners reside at 207 Northeast 24th Terrace, Cape Coral, Florida. They are of Hispanic (Mexican) origin. Although Mr. Rodriguez alluded to the fact that he has a disability, the specific nature of the disability was not disclosed. The Housing Corporation is a non-profit corporation with offices in Naples, Florida. It performs housing counseling services, including homebuyer education, credit counseling, financial literacy training, and foreclosure prevention counseling services in Southwest Florida. Respondent has seven full-time employees. The Housing Corporation is not a financial institution or a licensed real estate firm, and it is not in the business of providing commercial real estate loans. Due to the housing crisis which began around 2008, the federal government allocated foreclosure prevention funding that provides temporary assistance to eligible homeowners. If a homeowner qualifies for assistance, the homeowner may receive up to 12 months of financial assistance that is used to pay past due or current mortgage payments. The federal funds are administered in the State by the Florida Housing Finance Corporation (FHFC) through a program known as the Florida Hardest Hit Fund (the program). A number of advisor agencies have contracted with the FHFC to process applications under the program, including the Housing Corporation. To qualify for assistance under the program, among other things, applicants must demonstrate loss of employment income through no fault of their own. This requirement can be met in one of three ways: demonstrating eligibility for unemployment compensation; providing a letter from a current or previous employer indicating that loss or reduction of income was involuntary; or providing a letter from a doctor confirming that the applicant is suffering a temporary medical issue and will be able to resume work in the near future. These requirements are imposed by HUD and are strictly enforced. In April 2011, Mr. Rodriguez applied for assistance through the program. The application was initially processed by Reliable Business Solutions (RBS), an advisor agency in Orlando, but Petitioners were deemed to be ineligible because their mortgage was more than six months in arrears. After RBS ceased participating in the program, in December 2012 Petitioners' file was transferred to the Housing Corporation for further review. By that time, mortgage delinquency was no longer a reason for ineligibility. The reason why RBS held the application for an extended period of time is unknown. In January 2013, Petitioners' application was assigned to Kathleen Guevara, a Housing Corporation employee, whose national origin is Hispanic (Colombian). Because his unemployment compensation had ended in 2010, Mr. Rodriguez could not demonstrate that he was eligible for unemployment assistance. Also, he could not provide a letter from a current or previous employer confirming that he had suffered an involuntary loss or reduction in income. Ms. Guevara then explained to Mr. Rodriguez that in order to qualify for assistance under the program guidelines, he must provide a letter from a medical doctor confirming that he has a temporary medical issue or disability preventing him from working but he will be able to resume work in the near future. Mr. Rodriguez did not provide this information. At hearing, he stated that he could not afford to pay a doctor to prepare such a letter. On May 30, 2013, Ms. Guevara sent Mr. Rodriguez an email stating that the application could not be approved without "a letter from a doctor indicating [that] the nature of [his] disability is temporary." Attached to the email was a letter from the Executive Director stating that Petitioners were ineligible for program funding due to "No Qualifying Hardship – Permanent Disability." The letter also provided information on how to appeal that decision to the Florida Housing Coalition. Petitioners did not appeal the decision to the Florida Housing Coalition but elected instead to file a discrimination complaint with the EEOC. Mr. Rodriguez testified that he did so, in part, after consulting with other unidentified persons who advised him that he was the victim of discrimination. Mr. Rodriguez asserted that Ms. Guevara required him to provide the medical eligibility information only after she learned he was born in Mexico, and that other applicants for temporary assistance (especially Cubans) who were not born in Mexico were treated differently. There is no credible evidence to support this assertion. The more persuasive testimony is that the eligibility information is required from all applicants, regardless of their national origin. This is because HUD requires strict adherence to program guidelines and performs a biannual audit on the Housing Corporation to verify that the guidelines are being followed. The decision to deny the application was not based on Petitioners' national origin. Mr. Rodriguez failed to establish that he has a disability within the meaning of the law. See § 760.22(7), Fla. Stat. (2013). At best, Petitioners' Composite Exhibit 1 shows that he had a magnetic resonance imaging taken in June 2010 for "left shoulder pain," and he received an epidural injection within the last month or so, or long after the alleged discrimination occurred. In any event, the decision to deny the application for lack of documentation was not based on any actual or perceived disability but was based on Petitioners' failure to provide the required documentation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief filed on behalf of Jorge and Alquidania Rodriguez. DONE AND ENTERED this 4th day of April, 2014, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER 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 4th day of April, 2014.
