Florida/Georgia Personal Injury & Workers Compensation

Division regarding its intent, pursuant to section 550.0745(2) of the Florida Statutes, to relocate its

...At issue is whether the Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering (“Division”) erred in denying the application of West Flagler Associates, Ltd. (“West Flagler”), seeking a permit to conduct summer jai alai under section 550.0745(1), Florida Statutes, which allows for the issuance of new permits under defined circumstances....

...*421 Not long after its inception in Florida, jai alai became subject to the State’s gaming laws that regulate pari-mutuel activities. Those laws have since evolved, one of which is the 1992 enactment at issue entitled “Conversion of pari-mutuel permit to summer jai alai permit” that is codified as section 550.0745, Florida Statutes. Ch. 92-348, § 14. Laws of Florida. Section 550.0745(1) states that the owner or operator of a pari-mutuel permit (one authorized to conduct pari-mutuel pools on exhibition sports in a county having five or more such permits) who has the lowest handle (is the lowest performing economic...

...n five) qualifying permit holders in that county for the 2010-11 and 2011-12 state fiscal years. Though it was eligible to convert its quarter horse permit to a summer jai alai permit, Hialeah Park declined to do so. This triggered the provisions in section 550.0745(1), which state: “If a per-mittee who is eligible under this section to convert a permit declines to convert, a new permit is hereby made available in that permittee’s county to conduct summer jai alai games as provided by this section, notwithstanding mileage and permit ratification requirements.” § 550.0745(1), Fla....

...t is clearly erroneous or unreasonable.” Summersport Enters., Ltd. v. Pari-Mutuel Comm’n, 493 So.2d 1085, 1087 (Fla. 1st DCA 1986). On appeal, West Flagler seeks to overcome this proposition, arguing that the “plain and unambiguous language of Section 550.0745(1) requires the Division to issue a new summer jai alai permit each and every year if the lowest handling permitholder declines to convert its permit.” It relies upon principles of strict statutory construction, but as a fallback p...

...the statute to say so. And if it deems it a good policy to have this limitation, it can implement it legislatively; but we cannot interpret the language of the existing statute to achieve this result. III. Because the Division’s interpretation of section 550.0745(1) is not supportable, we reverse its final order with directions to reinstate West Flagler’s application for the new summer jai alai permit at issue....

...ional Regulation, Division of Pari- Mutuel Wagering (“the Division”), which denied West Flagler’s two applications for summer jai alai permits. For the reasons that follow, we affirm, holding that the Division properly construed and applied section 550.0745(1), Florida Statutes (2015). BACKGROUND West Flagler is the owner of a pari-mutuel permit and is one of seven permit holders authorized to conduct pari-mutuel pools on exhibition sports in Miami- Dade County. In 2015, West Flagler filed two separate applications with the Division, each application seeking a new summer jai alai permit pursuant to section 550.0745(1), which provides: The owner or operator of a pari-mutuel permit who is authorized by the division to conduct pari-mutuel pools on exhibition sports in any county having five or more...

...or total pool for each of the relevant fiscal periods, and thus, that SFRA was eligible to convert its pari-mutuel permit to a summer jai alai permit. West Flagler asserted that, because SFRA declined on each occasion to convert its permit to a summer jai alai permit, section 550.0745(1) required that a new summer jai alai permit be created and made available for each of those two-year periods. On July 10, 2015, the Division denied both of West Flagler’s applications. As to the First Application, the Di...

...The petitions were consolidated and referred to the Department of Administrative Hearings. Two issues of statutory construction were central to the determinations made at the final hearing, held before an Administrative Law Judge: (1) Whether the term “smallest play or total pool,” as used in section 550.0745(1), includes only live wagers2 and intertrack wagers,3 or whether that term also includes “simulcast export” wagers4 (i.e., out-of-state wagers); and (2) Whether under section 550.0745(1), a summer jai alai permit holder is eligible to “convert” its existing summer jai alai permit into a “new” summer jai alai permit. 2 Live wagers are those accepted at a permitted Florida facility on a race or game perf...

...construction unless it is clearly erroneous or unreasonable.” West Flagler Assoc., Ltd. v. Dep. of Bus. & Reg., 139 So. 3d 419, 421 (Fla. 1st DCA 2014). There are two conclusions of law, based upon the ALJ’s and the Division’s statutory construction of section 550.0745(1), which we must review in this appeal: (1) whether the calculation of a pari-mutuel facility’s “play or total pool” includes simulcast export wagers (i.e., out-of-state wagers); and (2) whether an existing summer jai alai...

...Our determination in the instant case—that the statutory language includes simulcast export wagers—is consistent with our analysis in South Florida Racing, and the contrary construction proposed by West Flagler would conflict with the plain meaning of section 550.0745(1).6 Thus, because we conclude that simulcast export wagers are to be included in a calculation of the play or total pool, the ALJ correctly determined that West Flagler had the smallest total pool in 2012-13, and that SJAP had the smallest total 6 West Flagler contends that, in construing section 550.0745(1), we should define the term “total pool” synonymously with the term “handle.” The term “handle” is statutorily defined, and means “the aggregate contributions to pari-mutuel pools.” § 550.3551(2)(b)....

...Though the First District’s opinion in West Flagler Associates may have used the terms “total pool” and “handle” interchangeably in its opinion, the issue in that appeal did not involve the distinction between these two terms in construing “total pool” under section 550.0745(1), and such a short-hand description, utilized by our sister court for ease of reference, is neither dispositive of, nor even persuasive in, our consideration of the issue addressed in the instant appeal. 10 pool in 2013-14....

...The Second Application raises a separate issue, because the Division does not dispute that SJAP was the permit holder with the smallest play or total pool for fiscal years 2013-14 and 2014-15. Rather, the Division contends that SJAP was not eligible to convert its permit under section 550.0745(1) because SJAP’s only permit is already a summer jai alai permit, and a summer jai alai permit cannot be “converted” to a summer jai alai permit. Therefore, because there is no permit holder who is eligible to convert its permit, no new permit was created, and West Flagler’s Second Application was properly denied. We agree. Again, section 550.0745(1) provides: The owner or operator of a pari-mutuel permit who is authorized by the division to conduct pari-mutuel pools on exhibition sports in any county having five or more such pa...

...erroneous or unreasonable.”) The Division’s construction of the statute is neither unreasonable nor clearly erroneous. CONCLUSION 13  We hold that the Division properly construed and applied section 550.0745(1), Florida Statutes, and therefore affirm the Division’s order denying both of West Flagler’s applications for summer jai alai permits. Affirmed. 14 

... South Florida Racing Association (“SFRA”) appeals from a final order of the State of Florida, Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering (“the Division”) denying SFRA’s application for a summer jai alai permit pursuant to section 550.0745(1) of the Florida Statutes (2013). In its final order, the Division interpreted the phrase “smallest play or total pool within the county” in section 550.0745(1) to include only those wagers physically placed within Miami-Dade County, and it denied SFRA’s application for a summer jai alai permit solely on that basis. Because we agree with SFRA that the Division’s interpretation of section 550.0745(1) was clearly erroneous, we reverse. FACTUAL BACKGROUND Pari-mutuel wagering is “a system of betting on races or games in which the winners divide the total amount bet, after deducting manageme...

...er informing the Division that it had the smallest total pari-mutuel pool for the two immediate-prior fiscal years (2011/2012 and 2012/2013) and thus had the right to convert its quarter horse racing permit to a summer jai alai permit pursuant to section 550.0745(1), Florida Statutes (2013), which provides, in relevant part: The owner or operator of a pari-mutuel permit who is authorized by the division to conduct pari-mutuel pools on exhibition sports in any county...

...The disagreement between the parties over which pari-mutuel establishment had the smallest total pool for the 2012/2013 fiscal year stems solely from their disparate methods of interpreting and calculating the “smallest play or total pool within the county” as specified in section 550.0745(1)....

...ck wagers placed at guest tracks within the county), then West Flagler had the lowest total pool, and no permit is available. In short, the parties agree that the interpretation of the clause “smallest play or total pool within the county” in section 550.0745(1) is dispositive. After receiving the denial letter from the Division, SFRA filed a Petition for 3It is unclear in the record whether the total amount specified includes proceeds derived by the establishments as guest tr...

...treat the proceeding as an informal administrative proceeding under section 120.57(4) of the Florida Statutes (2013). After a hearing, an officer from the Division entered a written recommendation that SFRA’s application be denied by expressly interpreting section 550.0745(1) such that the “smallest play or total pool within the county” calculation included only those bets physically placed in the county (i.e., live on-track wagers and intertrack wagers that were placed from other tracks in Miam...

...commencing on May 1 and ending on November 30 of each year on such dates as may be selected by such permittee for the same number of days and performances as are allowed and granted to winter jai alai frontons within such county. § 550.0745(1)....

...a race or game for a single possible result.” § 550.002(24). Nothing in Chapter 550 of the Florida Statutes limits the total pool to solely physical in-county wagers. Thus, we conclude that the Division’s interpretation conflicts with the plain meaning of section 550.0745(1). Even if we found the disputed language to be ambiguous, which we do not, the Division’s adopted interpretation of the statute is clearly erroneous based on 9 the legislative history of section 550.0745....

...ack wager for purposes of calculating the “total pool.” It is therefore unreasonable to construe this subsection of the statute as placing a limitation on the calculation of the total pool. More tellingly, the legislative history of section 550.0745 provides compelling proof that the Legislature did not intend the disputed language to restrict the “total pool” calculation to only those wagers physically placed within the county. Section 550.0745 was passed as it is currently written during a special legislative session in 1992, during which the Florida Legislature renumbered a large portion of the pari-mutuel statutes and passed several additional provisions 10 related to the regulation of pari-mutuel wagering in the state. See generally Ch. 92-348, § 14, at 31-32, Laws of Fla. Prior to this 1992 renumbering, however, the statute that is now section 550.0745 existed in substantively identical fashion as section 550.074....

...The license shall be renewable from year to year as provided by law. 12 Ch. 80-88, § 4, at 283-84 Laws of Fla. (emphasis added). Clearly, the language in the enacted 1980 statute is substantially identical to the language of the current version of section 550.0745, and thus, if ambiguous, “smallest play or total pool within the county” was just as ambiguous in 1980. However, the “whereas clause” preceding the enactment clarifies in transparent fashion that “within the county” is...

...This intent is fostered best by allowing the pari-mutuel permittee that is struggling the most to convert its permit to a more lucrative form of business; it matters not whether the income is from in-county or out-of-county. Thus, the Division’s interpretation of section 550.0745(1) limiting the “total pool within the county” to wagers placed physically within that county is clearly 14 erroneous and deviates from the common meaning of the statute....

... Appellant, South Florida Racing Association, LLC (SFRA), appeals a final order issued by the Division of Business and Professional Regulation, Division of Pari-Mutuel Wagering (Division), which denied SFRA’s application seeking a permit to conduct summer jai alai under section 550.0745(1), Florida Statutes (2012). The Division denied SFRA’s permit application because the Division maintained that no summer jai alai permit was available....

...SFRA’s application for a summer jai alai permit.1 We concur with the First District Court of Appeal’s conclusion in the West Flagler Appeal that the Division’s interpretation of the relevant statute governing creation of new summer jai alai permits (section 550.0745) was erroneous. 1 The West Flagler Appeal refers to SFRA as “Hialeah Park.” 2  We write only to address an issue raised in the instant appeal that was not germane to the West Flagler Appeal.2 I. The Division rejected SFRA’s additional argument that it is entitled to priority over other applications for a summer jai alai permit. We agree with the Division on this issue. Section 550.0745(1) provides, in relevant part, the following: If a permittee who is eligible under this section to convert a permit declines to convert, a new permit is hereby made available in that permittee’s county to conduct...

...g permit holders in Miami-Dade County for the 2009-10; 2010-11; 2011-12 state fiscal years. On December 17, 2012, rather than seek to convert its quarter horse permit to a summer jai alai permit, SFRA applied for a summer jai alai permit pursuant to section 550.0745(1)....

...single possible result.” § 550.002(13), (24), Fla. Stat. 3 years, and, thus the permit holder that is entitled to convert its quarter horse permit to a summer jai alai permit). The plain and unambiguous language of section 550.0745, however, does not provide any priority treatment to an applicant for a summer jai alai permit....

...of Pari-Mutuel Wagering, 139 So. 3d 419, 420 (Fla. 1st DCA 2014). Specifically, we address whether the Department of Business and Professional Regulation, Division of Pari- Mutuel Wagering (“Division”), erroneously interpreted the provisions of section 550.0745(1), Florida Statutes (2015), in denying the application of West Flagler Associates, Ltd....

...insupportable reading of the statute,” we reverse. W. Flagler, 139 So. 3d at 420. On September 3, 2015, West Flagler filed with the Division an “Application for New Summer Jai Alai Permit” for the 2011-2012 and 2012-2013 fiscal years pursuant to paragraph (1) of section 550.0745....

...& Prof’l Regulation, Div. of Pari-Mutuel Wagering, 201 So. 3d 57 (Fla. 3d DCA 2015). 2  On September 25, 2015, the Division issued a Letter of Intent in which it denied West Flagler’s application, claiming: Section 550.0745, Florida Statutes, states in pertinent part “[t]he owner or operator of a pari-mutuel permit who is authorized by the division to conduct pari-mutuel pools on exhibition sports in any county having five or more su...

...prior to filing an application under this section has had the smallest play or total pool within the county may apply to the division to convert its permit to a permit to conduct a summer jai alai fronton.” ([E]mphasis supplied). Section 550.0745, Florida Statutes, creates an exception to the general requirements to obtaining a pari-mutuel permit found in section 550.054, Florida Statutes. Specifically, the statute exempts the applicant from mileage restrictions and referendum requirements imposed by the general permit statute. Thus, section 550.0745, Florida Statutes, must be strictly construed in determining whether a permit is eligible for conversion to a summer jai alai permit, or whether such permit is available if the eligible permitholder declines t...

...istrative hearing pursuant to section 120.57(2), Florida Statutes. In its petition, it argued that the Division erred in denying the application because the Division erroneously applied the “next prior” language found in the first sentence of section 550.0745(1) to its application for a new summer jai alai permit filed according to the second sentence of that paragraph. 3 The “next prior” language, according to West Flagler, is limited to...

...mean the ‘immediately prior’ instances,” citing Bryan A. Garner, A Dictionary of Modern Legal Usage, 588 (2d ed. 1995)). The Division concurred, concluding that the Recommended Order was “not premised on an erroneous or unreasonable interpretation of section 550.0745(1), Florida Statutes,” and that “West Flagler’s proposed substituted recommendation is not more reasonable than that of the Hearing Officer’s.” The present appeal followed. Our analysis begins by recognizing that t...

...However, “judicial adherence to the agency’s view is not demanded 4 when it is contrary to the statute’s plain meaning.” PAC for Equality v. Dep’t of State, Fla. Elections Comm’n, 542 So. 2d 459, 460 (Fla. 2d DCA 1989). Here, we find that the plain meaning of section 550.0745(1) creates two separate ways for permittees to obtain a summer jai alai permit and hold that the Division’s conflation of these two distinct permit opportunities improperly imposed unrelated timing requirements on the “new permit” language. Under the first sentence of section 550.0745(1), a qualified pari-mutuel permittee “may apply to the division to convert its permit to a permit to conduct a summer jai alai fronton” when its “mutuel play from the operation of such pari- mutuel pools for the 2 consecuti...

...summer season commencing on May 1 and ending on November 30 of each year . . . .” The second opportunity occurs when the permittee—referenced in the first sentence—declines to convert its permit. In that event, the second sentence of section 550.0745(1) applies: “If a permittee who is eligible under this section to convert a permit declines to convert, a new permit is hereby made available in that permittee’s county to conduct summer jai alai games as provided by this section . . . 5 .” § 550.0745(1), Fla. Stat. (emphasis added). At that point, paragraph (1) neatly dovetails into the remaining paragraphs of section 550.0745, which define the finer points governing the operation of a summer jai alai permit. See § 550.0745(2), (3), & (4), Fla....

...implemented it in this case.” W. Flagler, 139 So. 3d at 422. Under the unequivocal terms of the statute in question, the period defined as “2 consecutive years next prior” to the filing of an application operates only as to the first sentence of section 550.0745(1)....

...tence is simply not envisioned. The two separate instances are mutually exclusive, and the time limitation placed by the legislature in the first sentence is conspicuously absent in the second. Because the Division’s interpretation of section 550.0745(1) “is not supportable,” we reverse the Final Order “with directions to reinstate West Flagler’s application for the new summer jai alai permit at issue.” Id. REVERSED and REMANDED. OSTERHAUS and WINSOR, JJ., CONC...