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 is whether any of the respondents is guilty of unlawful discrimination against Petitioner in the rental of a dwelling, in violation of section 760.23(2), Florida Statutes (2018).
Findings Of Fact At all material times, Petitioner has been an individual with a disability because he is infected with the human immunodeficiency virus (HIV). He is required regularly to take medication to control the disease. At all material times, Respondent Scandinavian Properties, LLC (Respondent Scandinavian) has owned a small complex of rental units in Miami Beach consisting of one or more Airbnb units at the back of the property and two duplex units at the front of property in a two-story building. This case involves one of the two-bedroom, one-bath duplexes with the address of 7910 Byron Avenue, Unit 1 (Unit 1), which was the ground-floor duplex. At all material times, Respondent Renes has been a managing principal of Respondent Scandinavian, and Respondent Bourguigne has been an employee of a property management company retained by Respondent Scandinavian to manage the complex. In an effort to find a suitable rental unit, Petitioner employed the services of a real estate broker or associate, who contacted Respondent Renes to discuss the rental of Unit 1, which had just undergone extensive renovations of two years' duration. Petitioner was recovering from recent surgery, so, as a favor to the real estate agent, Respondent Renes agreed to rent Unit 1 to Petitioner with a background check, but not the customary face-to-face meeting that Respondent Renes required with prospective tenants. Thus, Respondent Renes had limited, if any, contact with Petitioner during the lease negotiations. Petitioner and Respondent Scandinavian entered into a 12-month lease commencing November 1, 2018 (Lease). The Lease prohibited keeping any pets, smoking "in the Premises," creating any "environmental hazards on or about the Premises," keeping any flammable items "that might increase the danger of fire or damage" on the premises without the consent of Respondent Scandinavian, destroying, defacing, damaging, impairing or removing any part of the premises belonging to Respondent Scandinavian, and making any alterations or improvements to the premises without the consent of Respondent Scandinavian, although Petitioner was allowed to hang pictures and install window treatments. The Lease required Petitioner to ensure that all persons on the premises acted in a manner that did not "unreasonably disturb any neighbors or constitute a breach of the peace" and permitted Respondent Scandinavian to adopt or modify rules for the use of the common areas and conduct on the premises. The Lease assigned to Petitioner the responsibility for maintaining smoke detectors, locks, keys, and any furniture in the unit. The Lease permitted "[o]ccasional overnight guests," who could occupy the premises for no more than seven nights per month, and required written approval for anyone else to occupy the premises. Among the rules of the complex was a prohibition against disabling smoke detectors. However, without reference to the Lease provision applicable to pets, one rule allowed one dog or one cat. Another rule assured that management would help tenants gain access to their units when locked out. Within a few weeks of the commencement of the Lease, Petitioner's visitors violated two provisions of the Lease by smoking outside and allowing a dog to run loose in the common area. Respondent Renes or Bourguigne advised Petitioner of the violations, which do not appear to have resulted in any penalties. Admitting to the presence of the dog, Petitioner testified only that the video of the dog violation, if not also the smoking violation, led him to believe that he was being watched. Petitioner's complaint of individual surveillance became an ongoing issue--in his mind. The minimal staffing and small area occupied by the small complex, as a practical matter, both precluded individual operation of cameras to trace the movements of Petitioner and his visitors in the common area and facilitated the surveillance of all, or nearly all, of the common area with relatively few cameras. The evidence fails to support Petitioner's claim that the respondents at any time conducted video surveillance particularly of Petitioner or his visitors. Subsequently, Respondent Renes or Bourguigne advised Petitioner that someone had been shouting his name outside the gate of the complex during the evening hours. This incident is not prohibited by the Lease because the person, while perhaps acquainted with Petitioner, was not his invitee onto or about the premises. Nonetheless, Petitioner's sole reported reaction to this disturbance was to demand a copy of any video--and complain when the respondents failed to comply with his demand. Another of Petitioner's visitors parked a car outside the gate in a space reserved for occupants of the Airbnbs. When, evidently in the presence of Petitioner, Respondent Bourguigne confronted the visitor, the visitor replied that he had only been parked there for 20 minutes. Respondent Bourguigne stated that she had seen the car parked in the spot for 43 minutes. Again, Petitioner's sole response was not to deal with the violation, but to complain about surveillance, evidently of the parking area. The most serious violations of the Lease were discovered on January 28, 2019, when Respondent Renes conducted an inspection of Unit 1. Respondent Renes inspected all rental units of the complex every two or three months to check for safety issues that could imperil tenants or the complex itself. In her inspection, Respondent Renes found that Petitioner had disconnected the smoke alarms and encased them in plastic tape to render them inoperative. She also found that Petitioner had crowded the unit with furniture to the point of impeding egress and constituting a fire hazard. Although not involving safety issues, Respondent Renes found that Petitioner had attached screws to metal doors and kitchen cabinets, damaging these new fixtures. Additionally, Respondent Renes noted the presence of a cat. As noted above, the rules conflicted with the Lease as to the presence of a single dog or cat. In any event, by this time, the respondents were aware that the cat, as well as a human, routinely shared Unit 1 with Petitioner, and the respondents had impliedly consented to these cohabitations. Again, Petitioner's reaction to the Lease violations found by Respondent Renes on January 28 was not to address the problems. Instead, he objected to the inspection as singling him out. By letter delivered to Petitioner on February 14, 2019, Respondent Scandinavian advised that he was in violation of the Lease for allowing an unauthorized person and a cat to occupy the unit, for wrapping the smoke detectors in plastic, for damaging the unit's fixtures by attaching screws into the metal doors and kitchen cabinets, and by cluttering the interior of the unit so as to impede internal movement. The letter demands that Petitioner correct the violations within seven days, or else Respondent Scandinavian would terminate the lease. Respondent Bourguigne's main involvement with this case involves an incident that occurred on the evening of February 15, 2019, when Petitioner locked his keys in his unit and was unable to unlock the door or otherwise enter the unit. Petitioner called the office, but Respondent Bourguigne, who responds to such requests during her normal working hours of Monday through Friday from 9:00 a.m. to 5:00 p.m., did not receive the call until the following morning when she listened to messages. Respondent Bourguigne promptly called Respondent Renes for guidance, and Respondent Renes directed her to summon the complex's handyman, who, as soon as he could, which was 1:00 p.m. on February 16, drove to the complex and opened Unit 1 for Petitioner. Rather than call a locksmith when the respondents failed to respond immediately to his call to the office, Petitioner and a companion attempted to break into Unit 1 with a screwdriver at about 1:30 a.m. Although unaware of the lockout, Respondent Renes learned of the attempted break-in through an automated security system, so she called the police, who reported to the scene and, after briefly interrogating Petitioner, determined that no crime had taken place. Petitioner wrongly concluded that Respondent Renes had been watching him in real time and called the police, knowing that the apparent perpetrator was really Petitioner and no crime was taking place. While locked out of his unit, Petitioner had also sent emails to Respondent Renes. In one of them sent on February 16, Petitioner advised for the first time that he was diagnosed with HIV and dependent on medication that was locked in his unit. Respondent Renes testified that she did not see these emails until days later. At minimum, it is clear that, prior to February 16, no respondent was on notice of Petitioner's disability, so the seven-day notice letter delivered two days earlier could not have been motivated by a discriminatory intent. Despite the seven-day deadline contained in the letter of February 14, by email or text dated February 21, Petitioner advised Respondent Renes that, by 2:00 p.m. on February 22, he "will have remedied each of the … listed [violations]." This was one day past the deadline. Because Petitioner failed timely to meet the conditions of the February 14 seven-day notice letter, Respondent Scandinavian commenced an eviction proceeding on February 22 and, after a hearing, obtained a judgment ordering the eviction of Petitioner. Petitioner failed to prove any discriminatory intent on the part of any of the respondents in their dealings with him, any incidental discriminatory effect in their acts and omissions, or any failure or refusal to accommodate Petitioner's disability. To the contrary, as to discrimination, Respondent Renes chose to forego eviction and instead give Petitioner a chance timely to remedy the Lease violations; when Petitioner failed to do so, Respondent Scandinavian proceeded to evict Petitioner. Nor has any act or omission of any respondent had a discriminatory incidental effect on Petitioner. Lastly, the availability of Respondents Renes and Bourguigne or other employees of Respondent Scandinavian to open units to locked-out tenants and occupants was reasonable and in no way constituted a failure to accommodate Petitioner's disability, for which Petitioner never requested or, on these facts, needed an accommodation.
Recommendation It is RECOMMENDED that the Florida Commission on Human Relations enter a final order finding the respondents not guilty of the charges set forth in the Petition for Relief. DONE AND ENTERED this 13th day of January, 2021, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE 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 13th day of January, 2021. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 (eServed) Philip Kim, Esquire Pensky & Kim, P.A. 12550 Biscayne Boulevard, Suite 401 North Miami, Florida 33181 (eServed) Jack Wilson 17560 Atlantic Boulevard, Apartment 515 Sunny Isles Beach, Florida 33160 (eServed) Cheyenne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 (eServed)
Findings Of Fact The following relevant facts are undisputed: The Division is the arm of the Department of Business and Professional Regulation with the duty and responsibility to permit and regulate pari- mutuel wagering facilities throughout the state. §§ 550.002(7) and 550.01215, Fla. Stat. Petitioner is a pari-mutuel permittee that owns and operates the Daytona Beach Racing and Card Club in Volusia County, located at 1 Unless otherwise noted, all references to the Florida Statutes are to the 2020 version, which was in effect when the Petition was filed. 2 Petitioner waived the requirement in section 120.56(1)(c) that the final hearing be conducted within 30 days after assignment of the case. 960 South Williamson Boulevard in Daytona Beach, Florida (“Petitioner’s facility”). Intervenor is a pari-mutuel permittee doing business as St. Johns Greyhound Park in St. Johns County, at a leased facility located at 6322 Racetrack Road, St. Johns, Florida (“Bayard’s facility”), approximately 75 miles north of Petitioner’s facility. On July 8, 2020, Bayard filed with the Division a “Notice of Relocation” of Bayard’s facility to an eight-acre parcel in St. Augustine, Florida, which it is under contract to purchase. Bayard’s Notice of Relocation was filed pursuant to section 550.054(14)(b), Florida Statutes, which reads, in pertinent part, as follows: The holder of a permit converted pursuant to this subsection or any holder of a permit to conduct greyhound racing located in a county in which it is the only permit issued pursuant to this section who operated at a leased facility pursuant to s. 550.475 may move the location for which the permit has been issued to another location within a 30-mile radius of the location fixed in the permit issued in that county, provided the move does not cross the county boundary and such location is approved under the zoning regulations of the county or municipality in which the permit is located, and upon such relocation may use the permit for the conduct of pari-mutuel wagering and the operation of a cardroom. On September 11, 2020, the Division issued its Notice regarding Bayard’s relocation. Finding that Bayard had satisfied all the criteria for relocation pursuant to section 550.045(14)(b), the Division approved the relocation of Bayard’s permit to 2493 State Road 207 in St. Augustine, St. Johns County, Florida. On December 2, 2020, Petitioner filed the Petition challenging the Notice as an unadopted rule in violation of section 120.56(4). The Petition alleges, in pertinent part, as follows: 10. As part of the [Notice], the Division included a statement summarizing its application of the § 550.054(14)(b) relocation factors, yet failed to set forth any analysis of the conditions for relocation of greyhound permits set forth in § 550.0555(2). Based on this incomplete analysis of Bayard’s Notice of Relocation, the Division approved Bayard’s request to relocate. 12. Consequently, Petitioner is entitled to request a hearing challenging the Division’s agency statement interpreting the applicability of § 550.054(14)(b), and lack of applicability of § 550.0555(2), in the [Notice] as an unpromulgated rule. 21. When analyzing whether to approve Bayard’s request to relocate [Bayard’s facility], the Division reviewed the factors listed in § 550.054(14)(b), but wholly disregarded the factors listed in § 550.0555(2). In other words, the Division determined, that a request, “pursuant to § 550.054(14)(b)” need not satisfy the requirements of § 550.0555(2), despite the fact that such an interpretation finds no support in the relevant statutes themselves. This interpretation of law represents an “agency statement of general applicability that implements, interprets or prescribes law or policy[.]” § 120.52(16), Fla. Stat. Since the Division did not properly adopt this interpretation as a rule, this means it is an invalid unpromulgated rule that cannot support agency action. The crux of Petitioner’s argument is that the Notice reflects an unwritten policy of the Division to apply only the factors in section 550.054(14)(b) to applications to relocate which are filed “pursuant to that section,” and not apply the factors in section 550.0555(2).3 The Notice does not cite, analyze, or otherwise refer to, section 550.0555.
The Issue Whether the Petitions filed by Ambar Trail, Ltd.; Sierra Meadows Apartments, Ltd.; and Quail Roost Transit Village IV, Ltd., should be dismissed for lack of standing.
Findings Of Fact Florida Housing is a public corporation created under Florida law to administer the governmental function of financing or refinancing affordable housing and related facilities in Florida. Florida Housing administers a competitive solicitation process to implement the provisions of the housing credit program, under which developers apply and compete for funding for projects in response to RFAs developed by Florida Housing. The RFA in this case was specifically targeted to provide affordable housing in Miami-Dade County, Florida. The RFA introduction provides: 2 As this Recommended Order of Dismissal is based upon a motion to dismiss, the factual allegations of the three Petitions filed by the Petitioners in this consolidate case are accepted as true, and the Findings of Fact are derived from the four corners of those Petitions, see Madison Highlands. LLC v. Florida Housing Finance Corp., 220 So. 3d 467, 473 (Fla. 5th DCA 2017), and facts that are not otherwise in dispute. This Request for Applications (RFA) is open to Applicants proposing the development of affordable, multifamily housing located in Miami- Dade County. Under this RFA, Florida Housing Finance Corporation (the Corporation) expects to have up to an estimated $7,195,917 of Housing Credits available for award to proposed Developments located in Miami-Dade County. After Florida Housing announced its preliminary funding award decisions for RFA 2019-112 for Housing Credit Financing for Affordable Housing Developments Located in Miami-Dade County, each of the Petitioners filed Petitions challenging the decisions. Petitioners do not allege that Florida Housing improperly scored or evaluated the applications selected for funding, nor do they contend that Petitioners' applications should be funded. Instead, Petitioners allege that the evaluation was fundamentally unfair and seeks to have the entire RFA rescinded based on alleged improprieties of one responding entity and its affiliates. Petitioners claim that the evaluation process was fundamentally unfair is based entirely on allegations that several entities associated with Housing Trust Group, LLC (HTG), combined to submit 15 Priority I applications in contravention of the limitation in the RFA on the number of Priority I applications that could be submitted. Even assuming Petitioners' assertions are correct, there is no scenario in which Petitioners can reach the funding range for this RFA. In order to break ties for those applicants that achieve the maximum number of points and meet the mandatory eligibility requirements, the RFA sets forth a series of tie-breakers to determine which applications will be awarded funding. The instant RFA included specific goals to fund certain types of developments and sets forth sorting order tie-breakers to distinguish between applicants. The relevant RFA provisions are as follows: Goals The Corporation has a goal to fund one (1) proposed Development that (a) selected the Demographic Commitment of Family at questions 2.a. of Exhibit A and (b) qualifies for the Geographic Areas of Opportunity/SADDA Goal as outlined in Section Four A. 11. a. The Corporation has a goal to fund one (1) proposed Development that selected the Demographic Commitment of Elderly (Non-ALF) at question 2.a. of Exhibit A. *Note: During the Funding Selection Process outlined below, Developments selected for these goals will only count toward one goal. Applicant Sorting Order All eligible Priority I Applications will be ranked by sorting the Applications as follows, followed by Priority II Applications. First, from highest score to lowest score; Next, by the Application's eligibility for the Proximity Funding Preference (which is outlined in Section Four A.5.e. of the RFA) with Applications that qualify for the preference listed above Applications that do not qualify for the preference; Next, by the Application's eligibility for the Per Unit Construction Funding Preference which is outlined in Section Four A.lO.e. of the RFA (with Applications that qualify for the preference listed above Applications that do not qualify for the preference); Next, by the Application's eligibility for the Development Category Funding Preference which is outlined in Section Four A.4.(b)(4) of the RFA (with Applications that qualify for the preference listed above Applications that do not qualify for the preference); Next, by the Applicant's Leveraging Classification, applying the multipliers outlined in Item 3 of Exhibit C of the RFA (with Applications having the Classification of A listed above Applications having the Classification of B); Next, by the Applicant's eligibility for the Florida Job Creation Funding Preference which is outlined in Item 4 of Exhibit C of the RFA (with Applications that qualify for the preference listed above Applications that do not qualify for the preference); and And finally, by lotterv number, resulting in the lowest lottery number receiving preference. This RFA was similar to previous RFAs issued by Florida Housing, but included some new provisions limiting the number of Priority I applications that could be submitted. Specifically, the RFA provided: Priority Designation of Applications Applicants may submit no more than three (3) Priority I Applications. There is no limit to the number of Priority II Applications that can be submitted; however, no Principal can be a Principal, as defined in Rule Chapter 67- 48.002(94), F.A.C., of more than three ( 3) Priority 1 Applications. For purposes of scoring, Florida Housing will rely on the Principals of the Applicant and Developer(s) Disclosure Form (Rev. 05-2019) outlined below in order to determine if a Principal is a Principal on more than three (3) Priority 1 Applications. If during scoring it is determined that a Principal is disclosed as a Principal on more than three (3) Priority I Applications, all such Priority I Applications will be deemed Priority II. If it is later determined that a Principal, as defined in Rule Chapter 67-48.002(94), F.A.C., was not disclosed as a Principal and the undisclosed Principal causes the maximum set forth above to be exceeded, the award(s) for the affected Application(s) will be rescinded and all Principals of the affected Applications may be subject to material misrepresentation, even if Applications were not selected for funding, were deemed ineligible, or were withdrawn. The Petitioners all timely submitted applications in response to the RFA. Lottery numbers were assigned by Florida Housing, at random, to all applications shortly after the applications were received and before any scoring began. Lottery numbers were assigned to the applications without regard to whether the application was a Priority I or Priority II. The RFA did not limit the number of Priority II Applications that could be submitted. Review of the applications to determine if a principal was a principal on more than three Priority 1 Applications occurred during the scoring process, well after lottery numbers were assigned. The leveraging line, which would have divided the Priority I Applications into Group A and Group B, was established after the eligibility determinations were made. All applications were included in Group A. There were no Group B applications. Thus, all applications were treated equally with respect to this preference. The applications were ultimately ranked according to lottery number and funding goal. . If Florida Housing had determined that an entity or entities submitted more than three Priority I Applications with related principals, the relief set forth in the RFA was to move those applications to Priority II. Florida Housing did not affirmatively conclude that any of the 15 challenged applications included undisclosed principals so as to cause a violation of the maximum number of Priority I Applications that could be submitted. All of the applications that were deemed eligible for funding, including the Priority II Applications, scored equally, and met all of the funding preferences. After the applications were evaluated by the Review Committee appointed by Florida Housing, the scores were finalized and preliminary award recommendations were presented and approved by Florida Housing's Board. Consistent with the procedures set forth in the RFA, Florida Housing staff reviewed the Principal Disclosure Forms to determine the number of Priority I Applications that had been filed by each applicant. This review did not result in a determination that any applicant had exceeded the allowable number of Priority I Applications that included the same principal. One of the HTG Applications (Orchid Pointe, App. No. 2020-148C) was initially selected to satisfy the Elderly Development goal. Subsequently, three applications, including Slate Miami, that had initially been deemed ineligible due to financial arrearages were later determined to be in full compliance and, thus, eligible as of the close of business on January 8, 2020. The Review Committee reconvened on January 21, 2020, to reinstate those three applications. Slate Miami was then recommended for funding. The Review Committee ultimately recommended to the Board the following applications for funding: Harbour Springs (App. No. 2020-101C), which met the Geographic Areas of Opportunity/SADDA Goal; Slate Miami (App. No. 2020-122C), which met the Elderly (non-ALF) Goal; and Naranja Lakes (App. No. 2020-117C), which was the next highest-ranked eligible Priority I Application. The Board approved the Committee's recommendations at its meeting on January 23, 2020, and approved the preliminary selection of Harbour Springs, Slate Miami, and Naranja Lakes for funding. The applications selected for funding held Lottery numbers 1 (Harbour Springs), 2 (Naranja Lakes), and 4 (Slate Miami). Petitioners' lottery numbers were 16 (Quail Roost), 59 (Sierra Meadows) and 24 (Ambar Trail). The three applications selected for funding have no affiliation or association with HTG, or any of the entities that may have filed applications in contravention of the limitation in the RFA for Priority I applications. The applications alleged in the Petitions as being affiliated with HTG received a wide range of lottery numbers in the random selection, including numbers: 3, 6, 14, 19, 30, 38, 40, 42, 44, 45, 49, 52 through 54, and 58. If Petitioners prevailed in demonstrating an improper principal relationship between the HTG applications, the relief specified in the RFA (the specifications of which were not challenged) would have been the conversion of the offending HTG applications to Priority II applications. The relief would not have been the removal of those applications from the pool of applications, nor would it have affected the assignment of lottery numbers to any of the applicants, including HTG. The Petitions do not allege any error in scoring or ineligibility with respect to the three applications preliminarily approved for funding.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Petitioners lack standing and dismissing the Petitions with prejudice. DONE AND ENTERED this 3rd day of April, 2020, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III 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 3rd day of April, 2020. COPIES FURNISHED: Maureen McCarthy Daughton, Esquire Maureen McCarthy Daughton, LLC Suite 3-231 1400 Village Square Boulevard Tallahassee, Florida 32312 (eServed) Michael P. Donaldson, Esquire Carlton Fields Jorden Burt, P.A. 215 South Monroe Street, Suite 500 Post Office Drawer 190 Tallahassee, Florida 32302-0190 (eServed) Donna Elizabeth Blanton, Esquire Brittany Adams Long, Esquire Radey Law Firm, P.A. Suite 200 301 South Bronough Street Tallahassee, Florida 32301 (eServed) Hugh R. Brown, General Counsel Betty Zachem, Esquire Florida Housing Finance Corporation Suite 5000 227 North Bronough Street Tallahassee, Florida 32301-1329 (eServed) M. Christopher Bryant, Esquire Oertel, Fernandez, Bryant & Atkinson, P.A. Post Office Box 1110 Tallahassee, Florida 32302-1110 (eServed) J. Stephen Menton, Esquire Tana D. Storey, Esquire Rutledge Ecenia, P.A. 119 South Monroe Street, Suite 202 Post Office Box 551 (32302) Tallahassee, Florida 32301 (eServed) Corporation Clerk Florida Housing Finance Corporation Suite 5000 227 North Bronough Street Tallahassee, Florida 32301-1329 (eServed)
The Issue Whether Florida Administrative Code Rule 61D-4.002 constitutes an invalid exercise of delegated legislative authority?
Findings Of Fact Petitioner is the owner and holder of a pari-mutuel permit that authorizes it to conduct quarterhorse racing at Hialeah Park, in Miami-Dade County. Petitioner is subject to chapter 550, Florida Statutes and the administrative rules promulgated thereunder in Florida Administrative Code Chapter 61D. The Florida Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering is the state agency charged with regulating pari-mutuel wagering, pursuant to chapter 550, Florida Statutes, and the administrative rules promulgated thereunder in chapter 61D. Petitioner applied for the issuance of a summer jai alai permit pursuant to the Statute. Pursuant to the Statute, in a county in which there are five or more pari-mutuel permitholders, if one permitholder in the county has the lowest total pool for two consecutive years, the permitholder can convert its permit to a summer jai alai permit. Further, if the qualifying permitholder elects not to convert its permit, a new summer jai alai permit is made available in that county. There are more than five pari-mutuel permits issued in Miami-Dade County. Petitioner had the lowest pool among all permitholders in Miami-Dade County for fiscal years 2010/2011 and 2011/2012. Therefore, pursuant to the Statute, Petitioner had the right to convert its permit to a summer jai alai permit. Petitioner declined to do so, and instead applied for the issuance of the summer jai alai permit made available pursuant to the Statute as a result of its election not to convert. The Department maintained that no permit was available to be issued. However, the First District Court of Appeal3/ and Third District Court of Appeal4/ have both ruled that a summer jai alai permit is available to be issued for 2012 (Permit). Thereafter, the Division denied Petitioner's application for the Permit, applying the Rule and determining that issuance of the Permit to Petitioner would not preserve and protect the pari-mutuel revenues of the State, and that Petitioner does not reflect a prospective permitholder that would enjoy potential profitability from the issuance of the Permit. On November 11, 2014, Petitioner filed a Petition for Formal Administrative Hearing giving rise to the instant proceeding. In the Petition, Petitioner also contended that even if the rule is valid, the Department erred in its application of the Rule to deny the Permit.5/ In 1996, the Department undertook the rule promulgation process as outlined in chapter 120 to adopt rule 61D-4.002 for "Evaluating a Permit Application for a Pari-Mutuel Facility." The Rule identifies sections 550.0251(4), 550.054(8)(b), and 550.1815(5), Florida Statutes, as rulemaking authority. The Rule identifies sections 550.0251, 550.054, 550.0951, 550.155, and 550.1815, Florida Statutes, as the specific law to be implemented. Part (1)(a) of the Rule provides that the Department shall consider whether the applicant is potentially profitable. Part (1)(b) of the Rule requires the Department to consider whether the applicant would preserve and protect the pari-mutuel revenues of the state. Parts (1)(c) and (d) of the Rule require the Department to consider the holdings, transactions, and investments of the applicant and whether there exists any judgment or current litigation against the applicant. At hearing, counsel for the Department advised that the Department has previously applied the Rule to the Statute on at least two occasions, when West Flagler Associates applied for summer jai alai permits pursuant to the Statute.
The Issue Whether Respondent, Florida Housing Finance Corporation’s (“Florida Housing”), decision to award funding, pursuant to Request for Applications 2017-111 (“the RFA”), to HTG Sunset, LLC (“Sunset Lake”); HTG Creekside, LLC (“Oaks at Creekside”); and Harper’s Pointe, LP (“Harper’s Pointe”), is contrary to its governing statutes, rules, or the RFA specifications; and, if so, whether the decision is clearly erroneous, contrary to competition, arbitrary, or capricious.
Findings Of Fact Petitioner Madison Oaks is the Applicant entity for a proposed affordable housing development to be located in Osceola County, Florida. Petitioner Sterling Terrace is the Applicant entity for a proposed affordable housing development to be located in Hernando County, Florida. American Residential and Sterling Terrace are Developer entities as defined by Florida Housing in Florida Administrative Code Rule 67-48.002(28). Sunset Lake, Oaks at Creekside, and Harper’s Pointe are all properly registered business entities in Florida in the business of providing affordable housing. Florida Housing is a public corporation organized pursuant to chapter 420, Part V, Florida Statutes, and, for the purposes of these proceedings, an agency of the State of Florida. Through the RFA, Florida Housing proposes to award an estimated $10,978,942 in Housing Credit Financing for Affordable Housing Developments located in medium and small counties (“affordable housing tax credits”). The RFA outlines a process for selecting developments for funding. Section Five B. outlines the Selection Process, and subsection 2. is the Application Sorting Order. On November 5, 2017, Florida Housing received 167 applications in response to the RFA. Madison Oaks, Sterling Terrace, Sunset Lake, Oaks at Creekside, and Harper’s Pointe timely submitted applications seeking funding to assist in the development of multi-family housing in medium counties. Florida Housing selected a review committee to score all submitted applications. The review committee issued a recommendation of preliminary rankings and allocations, and the Board of Directors of Florida Housing approved these recommendations on May 4, 2018. The Board found that the parties to this proceeding all satisfied the mandatory and eligibility requirements for funding, but awarded funding to Intervenors based upon the ranking criteria in the RFA. If Sterling Terrace can demonstrate that any two of the three Intervenors should not have been recommended for funding, it and Blue Sunbelt, LLC, will displace them as applications selected for funding. If Madison Oaks can demonstrate that all three Intervenors should not have been recommended for funding, Sterling Terrace and Blue Sunbelt, LLC, will displace them as applications selected for funding. Sunset Lake Section Four A.5.e.(3) of the RFA allows applicants to receive up to four points for proximity to certain community services. The RFA provides that applicants in medium counties must receive at least seven points to be eligible for funding, and at least nine points to be eligible for a Proximity Funding Preference. One of those community services is public schools, which are defined as follows: A public elementary, middle, junior and/or high school, where the principal admission criterion is the geographic proximity to the school. This may include a charter school, if the charter school is open to appropriately aged children in the radius area who apply, without additional requirements for admissions such as passing an entrance exam or audition, payment of fees or tuition, or demographic diversity considerations. Additionally, it must have been in existence and available for use by the general public as of the Application Deadline. (emphasis added). Sunset Lake identified the Jewett School of the Arts (“Jewett School”) as a public school, received four points for proximity, and as a result, was eligible for the Proximity Funding Preference. The Jewett School is a magnet school within the Polk County Florida School District. The Jewett School was in existence and available for use by the general public as of the application deadline. Petitioners maintain the Jewett School does not meet the definition of “public school.”4/ If the Jewett School does not meet the definition of a “public school,” Sunset Lake would not be entitled to four points for proximity to community services. As a result, it would have a total of seven points for proximity, and while it would remain eligible, it would lose the Proximity Funding Preference. As a result, Sunset Lake would not have been ranked as highly and would not have been recommended for funding. The Jewett School does not meet the RFA definition of “public school” because geographic proximity to the school is not the principal admission criterion. Although a student must live in Polk County Schools’ Magnet Zone B to apply for admission to the Jewett School, the principal admission criteria is a random lottery process. Geographic location within the Polk County magnet school zones is a threshold issue which qualifies a student to apply for admission. However, the magnet school decision-making process entails a subsequent elaborate demographic diversity analysis, sorting based on the outcome of that analysis, and, ultimately, a random lottery drawing which determines final admission. The Jewett School admission process is contrary to Florida Housing’s primary purpose of awarding proximity points to proposed housing developments--to ensure the intended residents can, in fact, use the services in proximity to the development. Sunset Lake is not entitled to four points for proximity to community services and should not be awarded Proximity Funding Preference. As a result, Sunset Lake should not have been ranked as highly and should not have been recommended for funding. Oaks at Creekside Oaks at Creekside identified the Manatee Charter School (“Manatee School”) as a public school, received three points for proximity, and, as a result, was eligible for funding but not for the Proximity Funding Preference. The Manatee School is a charter school located in Bradenton, Florida. The Manatee School was in existence and available for use by the general public as of the application deadline. Petitioners maintain the Manatee School does not meet the definition of a “public school.”5/ If the Manatee Charter School does not meet that definition, then Oaks at Creekside is not entitled to three points for proximity. As a result, it would have only six total proximity points, and would not be eligible for funding. Florida Housing maintains that a charter school must meet both parts of the definition of a public school in order for a proposed development to receive proximity points based on proximity to that school. That means a charter school must (1) use geographic proximity as the primary admission criteria, and (2) be “open to appropriately aged children in the radius area who apply, without additional requirements for admissions such as passing an entrance exam or audition, payment of fees or tuition, or demographic diversity considerations.” Geographic proximity is not the primary admission criterion for the Manatee School. On the contrary, the Manatee School is open for admission regardless of geographic proximity thereto. The Manatee School operates pursuant to a contract with the Manatee County School Board, and is “open to any student residing in the Manatee County School District, students covered in an interdistrict agreement and students as provided for in Section 1002.33(10), Florida Statutes (2010).”6/ The Manatee School operates a “controlled open enrollment” process. The application period opens in early January and closes at the end of February, and the School accepts students from any school district in the state whose parent or guardian can provide transportation to the school, if the school has not reached capacity. This process is sometimes referred to as “school choice” and is mandatory pursuant to section 1002.31, Florida Statutes.7/ The Manatee School has enrolled students throughout Manatee County, as well as from adjoining Sarasota County. Historically, the Manatee School has not reached capacity. Once the School reaches capacity in any one grade level or class, students will be selected by a system-generated, random lottery process. The term “radius area” is not defined in the RFA or in Florida Housing’s rules. Florida Housing introduced no evidence regarding the meaning of the term “radius area” within the definition of “public school.” When questioned about the meaning, Marisa Button, Florida Housing’s Director of Multifamily Allocations, stated she did not know, but “[I] assume it means if the charter school has a radius area. I don’t know.”8/ The term “radius” is defined as “a bounded or circumscribed area.” Merriam-Webster Online, www.merriam- webster.com (2018). The bounded or circumscribed area for admission to the Manatee School is the Manatee County School District, pursuant to its contract. The Manatee School is open to appropriately-aged children in the radius area who apply. The Manatee School does not apply additional requirements for admission, such as passing an entrance exam or audition, payment of fees or tuition, or demographic diversity considerations.9/ The Manatee School does provide admissions preferences to students of active duty military personnel, siblings of a student already enrolled, siblings of an accepted applicant, children of an employee of the School, and children of a charter board member. Each of these preferences is authorized pursuant to section 1002.33(10)(d). The preferences are not additional requirements for admission to the Manatee School. The Manatee School meets the second part of the definition of “public school” for purpose of qualifying Oaks at Creekside to receive proximity points pursuant to the RFA. Harper’s Pointe Madison Oaks argues Harper’s Pointe is ineligible for funding pursuant to the RFA because the Harper’s Pointe development site is a “scattered site,” and Harper’s Pointe did not identify the site as such and comply with the RFA requirement to designate latitude and longitude coordinates for both sites.10/ Rule 67-48.002(105) defines “scattered sites” as follows: (105) “Scattered sites,” as applied to a single Development, means a Development site that, when taken as a whole, is comprised of real property that is not contiguous (each such non-contiguous site within a Scattered Site Development, is considered to be a “Scattered Site”). For purposes of this definition “contiguous” means touching at a point or along a boundary. Real property is contiguous if the only intervening real property interest is an easement, provided the easement is not a roadway or street. All of the Scattered Sites must be located in the same county. Section Four A.5.c. of the RFA states: “The Applicant must state whether the Development consists of Scattered Sites.” Section Four A.5.d. of the RFA requires that applicants provide latitude and longitude coordinates for the Development Location Point and any scattered sites. Section Five A.1. provides that “only items that meet all of the following Eligibility Items will be eligible for funding and consideration for funding selection.” Among the items listed are “Question whether a Scattered Sites Development answered” and “Latitude and Longitude Coordinates for any Scattered Site provided, if applicable.” Harper’s Pointe did not state in its application that the development consists of scattered sites, and did not provide separate latitude and longitude coordinates for scattered sites. Harper’s Pointe’s proposed development site, as identified in its Site Control Documents, consists of land located within a platted tract of property. The plat recorded in Alachua County indicates that the site is bisected by a platted 50-foot street easement running east/west through the property. The parties stipulated the street has never been constructed. Although portions of the east/west easement area show signs of having been improved at some time in the past, the easement area has never been paved, and is currently impassible by car or truck due to vegetation in the easement area. Even if the easement area were improved, there is no roadway to the west of the property to which it would connect. A fence runs along the property line and the property beyond the fence is platted residential lots accessed by Northeast 22nd Street. An existing roadway, Northeast 23rd Avenue, terminates at the eastern property line just south of the east/west easement. The City has placed barriers at that property line prohibiting access to the property from Northeast 23rd Avenue. If the platted street is a “roadway or street” as those terms are used in rule 67-48.002(105), the site would meet the definition of a “scattered site.” Ms. Button testified on behalf of Florida Housing that the property meets the definition of a scattered site because “there is an easement that is a road or a street” that bisects the property. Ms. Button first testified that Florida Housing’s determination did not depend on whether a roadway or street is actually constructed within the easement, but rather, “it goes back to the easement, whether there is an easement that is a roadway or street.” Ms. Button’s testimony seemed logical enough. If the easement were a street easement, access between the northern and southern portions of the development site would be constrained. By contrast, if the easement were a conservation or utility easement, there would be no impairment of access between portions of the development site. However, on cross examination, Ms. Button testified that, in making the determination whether an easement for a road or street existed, Florida Housing would consider a number of other factors, including whether a roadway was actually constructed within the easement, whether there were physical obstructions preventing access to the “prospective” roadway or street, and whether the public had a right to use the “prospective” roadway or street. Ms. Button did not testify with specificity what factors she considered in making the determination that the easement, in this case, was “a roadway or street.” Ms. Button’s direct-examination testimony was conclusory: “Based on the documentation we received, there is an easement that is a road or street.” On direct examination, her determination appeared to be based solely on the plat designation of a street easement. On cross-examination, however, Ms. Button testified that “a street designated . . . on a plat could be evidence of the existence of a scattered site.” (emphasis added). Moreover, Ms. Button testified that Florida Housing could consider whether a roadway or street was actually constructed, whether there were obstructions to its use, and whether the public had a right to use the purported roadway. Ms. Button’s testimony that the Harper’s Point development site was a scattered site was equivocal, and the undersigned does not accept it as either reliable or persuasive.11/ There is no physical roadway or street constructed within the easement. While there is some evidence that some portions of the easement area were improved in the past, said improvement was at least 25 years old. The current condition of the property is fairly heavily wooded. To the extent a “path” exists on the property, it is not passable by a standard four- wheeled vehicle. Moreover, there are physical barriers preventing vehicular access to the property from the adjoining street to the east. There is no access to the property from the residential development to the west of the property. There is not an improved area preventing access from the northern to the southern portion of the development site. There is no structure built within the easement which would have to be demolished in order to build the project on the development site as a single parcel. Based on the entirety of the reliable evidence, the Harper’s Pointe development site is not a “scattered site” as defined in the RFA. Madison Oaks failed to prove that Florida Housing’s initial determination to award tax credits to Harper’s Pointe, pursuant to the RFA, was incorrect.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Florida Housing issue a final order finding (1) that its initial scoring decision regarding Sunset Lake was erroneous, and awarding funding to the applicant with the next highest lottery number; and (2) awarding funding to Oaks at Creekside and Harper’s Pointe, pursuant to its initial scoring decision. DONE AND ENTERED this 23rd day of August, 2018, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK 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 23rd day of August, 2018.
The Issue Whether Respondent, Century Realty Funds, Inc., violated the Florida Fair Housing Act, Chapters 760.20 through 760.37, Florida Statutes (2006), by failing to install a poolside chairlift as requested by Petitioner.
Findings Of Fact Based on the oral and documentary evidence presented at the formal hearing and on the entire record of this proceeding, the following Findings of Fact are made: Petitioner is physically disabled and protected for the purposes of the Florida Fair Housing Act. Respondent is the owner of Plantation Landings Mobile Home Park ("Plantation Landings") in Haines City, Florida. Plantation Landings is a 55-year-old and older community. It owns and leases the lots to the owner-tenants of Plantation Landings. Because Respondent owns the Plantation Landings real estate and the subject swimming pool, it has the sole discretion to approve the requested improvements. The swimming pool area is handicap accessible. It is a public swimming pool and regulated by the State of Florida, Department of Health. It was built approximately 30 years ago; there are no known existing construction plans for the pool. The swimming pool is surrounded by a wheelchair-accessible path, and the pool itself has two separate sets of handrails; one for the deep end and one for the shallow end. There are steps leading into the shallow end of the pool and a ladder leading into the deep end. The swimming pool does not have a poolside chairlift. The swimming pool area is not supervised by life guards. Plantation Landings does not provide any supportive services to its residents, such as counseling, medical, therapeutic, or social services. The owner-tenants of Plantation Landings are members of the Plantation Landings Mobile Home Park Homeowners' Association ("Homeowners' Association"), which is a voluntary homeowners' association. Petitioner and his wife are members of the Homeowners' Association. Petitioner and his wife purchased a home in Plantation Landings and leased a lot from Respondent on February 8, 2001, pursuant to a Lease Agreement of the same date. Petitioner is a paraplegic and is able to move about by wheelchair. He is able to access the swimming pool common area in his wheelchair. However, he is not able to get in and out of the pool by himself. He has attempted to get into the swimming pool with the assistance of other residents. He would like to be able to have access into the swimming pool without relying upon the assistance of other residents so that he can exercise. In April 2003, Petitioner discussed the feasibility of installing a poolside chairlift at the swimming pool with Respondent's agent. Petitioner offered to pay for the poolside chairlift and installation at his own expense. On April 1, 2003, Petitioner submitted a written request to Respondent requesting that Respondent install a poolside chairlift. Petitioner delivered his April 1, 2003, written request, literature, and video regarding the poolside chairlift to Respondent's agent. The request did not include any specifications or engineered drawings, nor did it state the proposed location for the poolside chairlift. The poolside chairlift initially proposed by Petitioner was the Model IGMT, which was an in-ground manually-operated lift with a 360-degree seat rotation. In its consideration of Petitioner's request, Respondent determined that the design and construction of the pool and the surrounding common areas were in compliance with all state and federal statutes and regulations and that the pool area and common areas to the pool were accessible by wheelchair. Respondent determined that it was not required to install a poolside chairlift for access into the pool. Respondent also learned that the IGMT model was not Americans With Disabilities Act compliant. It was Respondent's conclusion that the poolside chairlift was cost-prohibitive and a dangerous hazard. When Petitioner returned to Plantation Landings in November 2003, he was advised of Respondent's decision not to provide the requested poolside chairlift. In March 2004, Petitioner requested the assistance of James Childs, president of the Homeowners' Association, for the purpose of making a second request to Respondent for the installation of a poolside chairlift. On March 7, 2004, Mr. Childs, on Petitioner's behalf, wrote Respondent requesting a poolside chairlift. On May 3, 2004, Respondent wrote Mr. Childs denying the request. Over the several years Petitioner has resided in Plantation Landings, he has requested modifications to accommodate wheelchair accessibility. These requests included modifications to the ramp at the front of the clubhouse, modifications adding an additional wheelchair ramp to the back of the clubhouse for access into the clubhouse, and modifications to the handicap parking spaces in front of the clubhouse. All of Petitioner's requests for modifications were honored. In May 2006, Petitioner, again with the assistance of Mr. Childs, made a third request to install a poolside chairlift. This third request was identical to his two prior requests made in 2003 and 2004. This request was denied by letter on April 27, 2006. On December 23, 2006, Petitioner filed a Complaint with the U.S. Department of Housing and Urban Development alleging that Respondent had discriminated against him on the basis of his disability by refusing to allow him to install a poolside chairlift at his own expense.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing with prejudice the Petition for Relief for failure to establish an unlawful discriminatory act by Respondent, or, alternatively, that the claim is time-barred and that the Commission lacks jurisdiction to consider the Petition for Relief. DONE AND ENTERED this 15th day of February, 2008, in Tallahassee, Leon County, Florida. S JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of February, 2008.
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.
