CopyPublished | Florida 1st District Court of Appeal
...The
question in this statutory interpretation case is whether the Legislature intended to
allow expansion of slot machines via local referendum into all other Florida
counties in like manner through a 2009 enactment. See Ch. 2009-170, Laws of
Florida, § 19 (amending section 551.102(4), Fla....
...Because the Gadsden
County vote was not an authorized “referendum,” amounting to only a non-binding
vote of the electorate, it has no binding legal effect. Moreover, nothing in the
language, structure, or history of slot machine legislation, including section
551.102(4), Florida Statutes, provides authorization for the holding of slot machine
referenda in counties other than Miami-Dade and Broward counties....
...finalize what ultimately was chapter 2009-170, Laws of Florida. What began and
progressed through the session as a bill devoted entirely to the Seminole Tribe
gaming compact issue, Senate Bill 788 ultimately morphed into a final bill that
also included the amendment to section 551.102(4) at issue here.
During the conference committee process, the following amendment to
section 551.102 was added and approved:
551.102....
...keeping the Florida Supreme Court’s uncertain jurisprudence about slot machines
as lotteries as a backdrop, we turn to the statutory interpretation question at issue:
Did the Legislature intend its 2009 amendment to the definition of “eligible
facility” in section 551.102(4) to authorize the counties other than Miami-Dade
and Broward to hold slot machine referenda in their jurisdictions without the
passage of additional authority for such referenda?
The key portion to be interpreted is whether “a majority of voters have
approved slot machines at such facilities in a countywide referendum held
pursuant to a statutory or constitutional authorization after the effective date of
this section in the respective county.” § 551.102(4), Fla....
...Here, all pertinent
considerations confirm that the Legislature intended that any statutory
or constitutional authorization for a slots-approving referendum must
occur after July 1, 2010, the effective date of the relevant portion of
section 551.102(4), Florida Statutes.
Op....
...generalized “voter sentiment” statute (discussed later) that provides no
23
authorization for approval of any substantive matter of county concern.
§
125.01(y), Fla. Stat. Gretna Racing’s reading of section
551.102(4) would
transform an exceedingly limited authority for county straw polls into a broad
authority to expand slot machines statewide, which cannot possibly be what the
Legislature intended.
Third, if the Legislature truly int...
...potential proliferation of slot machines statewide in competition with the Tribe’s
gaming operations would merit some legislative statement about how local
expansion beyond Miami-Dade and Broward might occur. On this point, the
Attorney General, recognizing the context in which section 551.102(4) was
amended, said:
24
[T]he conclusion that additional legislative authorization is required
for a slots-approving referendum gives due recognition to the context
in which the Legislature adopted the relevant portion of section
551.102(4), Florida Statutes....
...ch contained provisions mandating
a reduction or loss of revenue to the State in response to an expansion
of slot machine gambling beyond that which existed at the time of the
compact’s adoption. To read the pertinent language in section
551.102(4) as allowing counties other than Miami-Dade and Broward
by referendum to authorize slot machines, absent specific legislative
or constitutional authority, would be at odds with the legislation as a
whole....
...the Seminole compact, it is virtually unthinkable that the Legislature
would have intended to both undermine and ratify the compact in the
same enactment. The basic canons of statutory interpretation require
me to reject a reading of section 551.102(4) that would lead to such an
absurd result....
...legislature to pass a special law without notice to an affected community that “is
conditioned to become effective only upon approval by vote of the electors of the
area affected.” Art. III, § 10, Fla. Const. (emphasis added). By analogy, the
enactment of the third clause in 551.102 was the legislature acting in anticipation
of a contingency.
26
Fifth, to the extent one sees an ambiguity in the statute, the legislative
history, exceptionally limited as it is (nothing written, only comments by
legislators during a floor debate), is helpful....
...referendum and that referendum passes, then that would
effectively break the payments of the compact.” (e.s.)
The above explanation by a sponsor of the legislation clearly indicates
that, under the pertinent language in section 551.102(4), Florida
Statutes, a county referendum to approve slots must be specifically
27
authorized by a statute or constitutional amendment enacted after July
1, 2010. Such an explanation is contrary to any assertion that the
Legislature intended the provisions of section 551.102(4), in
conjunction with a county's already-existing powers, to constitute
authority for a county to hold a referendum on slot machine gaming.
Op....
...As we said in
Holzendorf, “Since the constitution expressly provides that the power of
referendum can be granted only by the legislature, it is beyond the power of the
electorate to say what shall or shall not be done by referendum.” Id. The
administrative order, even if incorrect in its construction of section 551.102(4) is
nevertheless legally correct....
...1999) (appellate court not limited to “reasons given by the trial
court but rather must affirm the judgment if it is legally correct regardless of those
reasons”).
III.
The Department’s interpretation of the third clause in section 551.102(4) is
an entirely reasonable one....
...tate of Florida. Because the issue presented
is one of great public importance statewide, the following certified question is
appropriate:
31
Whether the Legislature intended that the third clause of section
551.102(4), Florida Statutes, enacted in 2009, authorize expansion of
slot machines beyond Miami-Dade and Broward Counties via local
referendum in all other eligible Florida counties without additional
statutory or con...
...The other basis then to grant rehearing
would be if the original decision misapprehended some point of law or fact. 11 This
provision of rule 9.330(a) gives me greater leeway and greater comfort in agreeing
that it is appropriate to grant rehearing.
I respectfully disagree with Judge’s Benton’s reading of section 551.102(4),
Florida Statutes....
...Dictionary defines misapprehend as “to apprehend wrongly: misunderstand.”
Merriam-Webster, http://www.merriam-webster.com (last visited August 13,
2015).
12
The best argument for Judge Benton’s reading of the statute is his observation
that the third clause of section of section 551.102(4) is rendered meaningless if
read in the manner suggested by the Department. Perhaps, however, the
35
effective date of this section” language in section 551.102(4) modifies the
immediately preceding “a statutory or constitutional authorization” phrase, and not
the more remote “referendum held” phrase.
The misapprehension in the original decision as what qualifies as an
“eligible facility” is very significant....
...ates upon particular persons or
things); Dep’t of Bus. Regulation v. Classic Mile, Inc.,
541 So. 2d 1155 (Fla.
1989). When the third clause was enacted, the second clause was also enacted.
Ch. 2009-170, §19, Laws of Fla. Without the third clause, section
551.102(4)
would have no potential state-wide application beyond Miami-Dade and Broward
counties....
...ties the ability to intrude on
this exclusivity? By my reading of section
551.104(4), it did not.
36
I therefore fully concur in those parts of Judge Makar’s opinion regarding
the interpretation of section
551.102(4), Florida Statutes....
...holds a countywide
38
referendum to approve such machines, absent a statutory or constitutional
provision enacted after July 1, 2010, authorizing such referendum.’” Answer Brief
at pp. 4-5 (emphasis added; citation omitted). But section 551.102(4), Florida
Statutes (2006), does not contain the word “enacted.” “‘Usually, the courts in
construing a statute may not insert words or phrases in that statute or supply an
omission that to all appearances was not in the minds of the legislators when the
law was enacted....
...We cannot be persuaded that a majority of the legislators
designedly used an indirect, unusual and abnormal procedure. It suggests either
inadvertence or cabal.” (footnote omitted)).
39
Under the Department’s construction of the third clause of section
551.102(4), a referendum could only occur if another statute (or a constitutional
amendment) was enacted (or adopted) authorizing a referendum. But that was the
status quo before section 551.102(4) was amended (or, indeed, enacted)....
...” because “a number of
Florida counties may by future referendum acquire racing establishments . . .
within the class covered”).
43
for licensure pursuant to section
551.104(2) (or the first clause of section
551.102(4)) because live racing or games did not occur there in “each of the last
two calendar years before” article X, section 23 was adopted. The parties
stipulated in the proceedings below that “Hialeah’s application [which the
Department granted after the statutory amendment at issue here] was submitted
under the second (2nd) clause of §
551.102(4), F.S., enacted effective 7/1/10,” not
under section
551.104(2)....
...e facilities beyond the
initial seven addressed in article X, section 23 and section
551.104(2). Hialeah
Race Track, like Gretna Racing’s horsetrack facility, was not among the initial
seven facilities.
Summarizing the 2009 amendment to section
551.102(4), the title to Chapter
2009-170 described its effect as: “amending s.
551.102, F.S.; redefining the terms
‘eligible facility’ and ‘progressive system’ to include licensed facilities in other
jurisdictions,” not just in Miami-Dade or Broward....
...This description of the amendment makes clear its purpose to redefine
eligible facilities, not merely to lay the (wholly unnecessary) groundwork for a
subsequent statute or constitutional amendment to redefine terms.
By making the amendment to section 551.102(4) applicable, not to Hialeah
44
Race Track only, but statewide (“in any other county”) the drafters minimized—or
greatly reduced—the possibility that the amendment would be deemed
u...
...rhaps to
prevent slot machine competition from the Hialeah Race Track, 16 holders of pari-
mutuel wagering permits in Miami–Dade County who were already licensed to
install slot machines sought a declaratory judgment that the 2009 amendment to
section 551.102(4) at issue here was unconstitutional in its entirety....
...Florida
Department of Business & Professional Regulation,
71 So. 3d 226 (Fla. 1st DCA
2011), South Florida Racing Association, LLC, owner of Hialeah Race Track, filed
an application for a license to conduct slot machine gaming at the Hialeah Race
Track in Miami-Dade County. Before the 2009 amendment to section
551.102(4),
Hialeah Race Track was ineligible for such a license....
...icle X, section
23.)
The incumbent licensees’ argument was rejected by each court that
considered it. We affirmed summary judgment upholding the constitutionality of
section 19 of chapter 2009-170, Laws of Florida, the 2009 amendment to section
551.102, and said: “[T]he only thing that Article X, section 23 limited was the
Legislature’s authority to prohibit slot machine gaming in certain facilities in the
two counties....
...1st DCA 1985) (“Our holding is
contrary to the cited opinion of the attorney general, but that opinion is not binding
upon the court.”).
In anticipation of applications like Gretna Racing’s, the Department posed
the following question to the Attorney General: “Does the third clause of section
551.102(4), Florida Statutes, ....
...on enacted
after July 1, 2010, authorizing such referendum?” Op. Att’y Gen. Fla. 2012–01
(2012). On January 12, 2012, the Attorney General opined the Department was
not authorized to issue a slot machine license pursuant to the third clause of section
551.102(4) “absent a statutory or constitutional provision enacted after July 1,
2010” because the governing clause “contemplates the necessity of additional
statutory or constitutional authorization before such a referendum may be held...
...application
for a slot machine license, pays the required
licensed fee, and meets the other
requirements of this chapter.”
....
In light of the amendment to section 551.102(4),
Florida Statutes, a question has arisen as to whether the
statute’s third clause contemplates that a county may now
hold a referendum to authorize slot machines, or,
alternatively,...
...ay be held.
Based on my review of the statute, I conclude that
additional statutory or constitutional authorization is
required to bring a referendum within the framework set
out in the third clause of section 551.102(4).
. . . I am of the opinion that the Department of
Business and Professional Regulation is not authorized to
issue a slot machine license to a pari-mutuel facility in a
county which, pursuant to the third clause in section
551.102(4), Florida Statutes, holds a countywide
referendum to approve such machines, absent a statute or
constitutional provision enacted after July 1, 2010,
authorizing such referendum.
(Footnote omitted.) Attorney General Opinion 2012–01 relied heavily on the
location of the phrase “after the effective date of this section” within what the
Opinion called “the third clause of section 551.102(4).”
Attorney General Opinion 2012-01 also relies on a mistaken reading of the
second clause of the amendment; and, under the heading of legislative intent, the
remarks of a single legislator made during the session in the yea...
...ents for placing the
question on the ballot, a majority of Gadsden County voters approved slot
machines at Gretna Racing’s pari-mutuel horsetrack facility. Gadsden County held
its referendum after July 1, 2010, the date the legislation amending section
551.102(4) finally took effect....
... to conduct referenda 21 on casino gambling under article VIII, section 1(f) of the
Florida Constitution and section
125.01, Florida Statutes). Because the
countywide referendum was held “after the effective date of” the amendment to
section
551.102(4), Gretna Racing is an “eligible facility,” as defined in section
21
“[T]he referendum power ‘can be exercised whenever the people through
their legislative bodies decide that it should be used.’ Florida Land Co....
...license is not
automatic.
The Department asserts, for the first time on appeal, that the favorable
response of Gadsden County voters to a “sentiment” question about slot machines
was not the specifically authorized referendum required by section 551.102(4).
See generally D.R....
...expression of voter sentiment” is “notably different from referring a legislative act
to the people for ‘final approval by popular vote’” cannot be reconciled with Watt
v. Firestone,
491 So. 2d 592, 593 (Fla. 1st DCA 1986).
57
551.102(4).
I respectfully dissent.
58
CopyPublished | Florida 1st District Court of Appeal
...The question in this statutory interpretation case is whether the Legislature intended to allow expansion of slot machines via local referendum into all other Florida counties in like manner through a 2009 enactment. See Ch. 2009-170, Laws of Florida, § 19 (amending section 551.102(4), Fla....
...Because the Gadsden County vote was not an authorized “referendum,” amounting to only a non-binding vote of the electorate, it has no binding legal effect. Moreover, nothing in the language, structure, or history of slot machine legislation, including section 551.102(4), Florida Statutes, provides authorization for the holding of slot machine referenda in counties other than Miami-Dade and Broward counties....
...tely was chapter 2009-170, Laws of Florida. What began and progressed through the session as a bill devoted entirely to the Seminole Tribe gaming compact issue, Senate Bill 788 ultimately morphed into a final bill that also included the amendment to section 551.102(4) at issue here. During the conference committee process, the following amendment to section 551.102 was added and approved: 551.102....
...erpreted is whether “a majority of voters have approved slot machines at such facilities in a countywide referendum held pursuant to a statutory or constitutional authorization after the effective date of this section 'in the respective county.” § 551.102(4), Fla....
...tion - appears. Here, all pertinent considerations confirm that the Legislature intended that any statutory or constitutional authorization for a slots-approving referendum must occur after July 1, 2010, the effective date of the relevant portion of section 551.102(4), Florida Statutes....
...Gretna Racing cannot point to any such authorization; all it relies upon is á generalized “voter sentiment” statute (discussed later) that provides no authorization for approval of any substantive matter of county concern. §
125.01(y), Fla. Stat. Gretna Racing’s reading of section
551.102(4) would transform an exceedingly limited authority for county straw polls into a broad authority to expand slot machines statewide, which cannot possibly be what the Legislature intended....
...achines statewide in competition with the Tribe’s gaming operations would merit some legislative statement about how local expansion : beyond Miami-Dade and Broward might occur. On this point, the Attorney General, recognizing the context in which section 551.102(4) was amended, said: [T]he conclusion that additional legislative authorization is required for a slots-approving referendum gives due recognition to the context in which the Legislature adopted the relevant portion of section 551.102(4), Florida Statutes....
...e of Florida, which contained provisions mandating a reduction or loss of revenue to the State in response to an expansion .of slot machine gambling beyond that which existed at the time of the compact’s adoption. To read the pertinent language in section 551.102(4) as allowing counties other than Miami-Dade and Broward by referendum to authorize slot machines, absent specific *27 legislative or constitutional authority, would be at odds with the' legislation as a whole....
...approval of the Seminole compact, it is virtually unthinkable that the Legislature would have intended ,to both undermine and ratify the compact in the same , enactment. The basic canons of statutory interpretation require me to reject a reading of section 551.102(4) that would lead to such an absurd result....
...aw without notice to an affected community that “is conditioned to become effective only upon approval by vote of the electors of the area affected.” Art. III, § 10, Fla. Const, (emphasis added). By analogy, the enactment of the third clause in 551.102 was the legislature acting in anticipation of a contingency.....
..., the county has the referendum and that referendum passes, then that would effectively break the payments of the compact.” (e.s.) ■’ The above explanation by a sponsor of the legislation clearly indicates that, under the pertinent language in section 551.102(4), Florida Statutes, a county referendum to approve slots must be specifically' authorized by a statute or constitutional amendment enacted after July 1, 2010. ' Such an explanation is contrary to any assertion that the Legislature intended the provisions of section 551.102(4), in conjunction with a county’s already-existing' powers, to constitute authority for a county to hold a referendum on slot machine gaming....
...As we said in Holzendorf , “Since the constitution expressly provides that the power of referendum can be granted only by the legislature, it is beyond the power of the electorate to say what shall or shall not be done by referendum.” Id. The administrative order, even if incorrect in its construction of section 551.102(4) is nevertheless legally correct....
...Radio Station WQBA,
731 So.2d 638, 645 (Fla. 1999) (appellate court not limited to “reasons given by the trial court but rather must affirm the judgment if it is legally correct regardless of those reasons”). III. The Department’s interpretation of the third clause in section
551.102(4) is an entirely reasonable one....
...he history of laws prohibiting slot machines in the State of Florida. Because the issue presented is one of great public importance statewide, the following certified question is appropriate: Whether the Legislature intended that the third clause of section 551.102(4), Florida Statutes, enacted in 2009, au *30 thorize expansion of slot machines beyond Miami-Dade and Broward Counties via local referendum in all other eligible Florida counties without, additional statutory or constitutional author...
CopyPublished | Supreme Court of Florida | 42 Fla. L. Weekly Supp. 593, 2017 WL 2210389, 2017 Fla. LEXIS 1084
...Section
551.104(1), Florida Statutes (2013), provides for the issuance by the Division of licenses “to conduct slot machine gaming.” Under section
551.104(1), the Division is authorized to issue such licenses to an “eligible facility”—a term that is defined in section
551.102(4)....
...X of the State Constitution.” So by its plain terms, section
551.104(2) limits licenses to facilities in counties where the voters have approved slot machines as provided by article X, section 23—which does not extend beyond Miami-Dade and Broward Counties. Yet the definition of “eligible facility” in section
551.102(4), Florida Statutes (2013), contemplates the issuance of licenses in additional circumstances: “Eligible facility” means [1] any licensed pari-mutuel facility located in Miami-Dade County or Broward County existing at the time of adoption of s....
...More particularly, it centers on whether Gadsden County is a “county in which a majority of voters have approved slot machines . . . in a countywide referendum held pursuant to a statutory or constitutional authorization after the effective date of this section.” § 551.102(4), Fla....
...tion of .great public importance certified by the First District. II. The Division denied a slot machine gaming license to Gretna Racing based on the Division’s conclusion that the requirements of neither section
551.104(2) nor the third clause of section
551.102(4) had been satisfied....
...e ambit of article X, section 23. The Division thus rejected an argument made by Gretna Racing, that, the limitation imposed, by section
551.104(2) was implicitly repealed by the Legislature’s subsequent adoption of the second and third clauses of section
551.102(4). Concerning the third clause of section
551.102(4), the Division focused on the portion of the text referring to “a countywide referendum held pursuant to a statutory or constitutional authorization after the effective date of this section.” (Emphasis added.) The Division inter...
...2012-01 (2012) (concluding that “all pertinent considerations confirm that the Legislature intended that any statutory or constitutional authorization for a slots-approving referendum must occur after July 1, 2010, the effective date of the relevant portion of section 551.102(4), Florida Statutes”)....
...The Division therefore rejected Gretna Racing’s reliance on section
125.01(1)(y), Florida Statutes (2013), which permits the governing body of a county to conduct “straw ballots,” because that “authorization” was adopted prior to the effective date of the third clause of section
551.102(4)....
...ounties. Gretna Racing,
178 So.3d at 16 . And the First District certified under article V, section 3(b)(4) of the Florida Constitution as a question of great public importance this question: Whether the Legislature intended that the third clause of section
551.102(4), Florida Statutes, enacted in 2009, authorize expansion of slot machines beyond Miami-Dade and Broward Counties via local referendum in all other eligible Florida counties without additional statutory or constitutional authorization after the effective date of the act? Id. at 29-30 . III. On review, Gretna Racing has abandoned its specific argument that section
125.01(1)(y)’s provision for “straw ballots” constituted “authorization” within the meaning of the third clause of section
551.102(4)....
...apter 551. Nothing in chapter 551, however, grants any authority to regulate slot machine gaming to- any county. The only role that counties play regarding slot machine gaming is conducting referenda when authorized by law. Under the third clause of section 551.102(4), there must be “statutory or constitutional authorization” for any countywide referendum approving slot machines at qualifying pari-mutuel facilities....
...horization to conduct a referendum to approve slot machine gaming. The referendum conducted by Gadsden County regarding slot machine gaming therefore was not conducted pursuant *767 to a “statutory or constitutional authorization” as required by section 551.102(4)....
