Fla. Gaming Centers Inc. v. Fla. Dep't of Bus.

• Decision Date: 06 October 2011
• Docket Number: Nos. 1D10–6780,1D11–0130.,s. 1D10–6780
• Citation: 71 So.3d 226
• Parties: FLORIDA GAMING CENTERS, INC., a Florida Corporation; and West Flagler Associates, Ltd., a Florida Limited Partnership, Appellants,v.FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION, an agency of the State of Florida, and South Florida Racing Association, LLC, a Florida Limited Liability Company, and Florida Pinball and Amusement, Inc., Appellees.Calder Race Course Inc., a Florida Corporation, Appellant,v.Florida Department of Business and Professional Regulation, Division of Pari–Mutuel Wagering, an agency of the State of Florida; and South Florida Racing Association, LLC, a Florida Limited Liability Company, and Florida Pinball and Amusement, Inc., Appellees.
• Court: Florida District Court of Appeals

71 So.3d 226

FLORIDA GAMING CENTERS, INC., a Florida Corporation; and West Flagler Associates, Ltd., a Florida Limited Partnership, Appellants,

v.FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION, an agency of the State of Florida, and South Florida Racing Association, LLC, a Florida Limited Liability Company, and Florida Pinball and Amusement, Inc., Appellees.Calder Race Course Inc., a Florida Corporation, Appellant,

v.Florida Department of Business and Professional Regulation, Division of Pari–Mutuel Wagering, an agency of the State of Florida; and South Florida Racing Association, LLC, a Florida Limited Liability Company, and Florida Pinball and Amusement, Inc., Appellees.

Nos. 1D10–6780

1D11–0130.

District Court of Appeal of Florida, First District.

Oct. 6, 2011.

John M. Lockwood of Gunster, Yoakley & Stewart, P.A., Tallahassee, Michael S. Olin of Michael S. Olin, P.A., Miami, and Joel S. Perwin of Joel S. Perwin, P.A., Miami, for Appellants Florida Gaming Centers and West Flagler Associates in Case No. 1D10–6780.Wilbur E. Brewton of Brewton Plante, P.A., Tallahassee, and Bruce S. Rogow and Cynthia E. Gunther of Bruce S. Rogow, P.A., Fort Lauderdale, for Appellant Calder Race Course, Inc. in Case No. 1D11–0130.Garnett W. Chisenhall, Chief Appellate Counsel, Department of Business & Professional Regulation, Tallahassee, for Appellee The Department of Business and Professional Regulation.Andrew T. Lavin of Navon & Lavin, P.A., Ft. Lauderdale, and Raoul G. Cantero, Rachel Wagner Furst, and John–Paul Rodriguez of White & Case LLP, Miami, for Appellee South Florida Racing Association, LLC.David S. Romanik of David S. Romanik, P. A., Oxford, and Marc W. Dunbar and Daniel R. Russell of Pennington, Moore, Wilkinson, Bell & Dunbar, P.A., Tallahassee, for Appellee Florida Pinball and Amusement, Inc., in Case No. 10–6780.DAVIS, J.

Appellants, Florida Gaming Centers, Inc. (“Florida Gaming”), West Flagler Associates, Ltd. (“West Flagler”), and Calder Race Course Inc. (“Calder”), appeal final judgments entered in favor of Appellees, the Florida Department of Business and Professional Regulation (“Department”) and South Florida Racing Association, LLC (“South Florida Racing”). Appellants contend that the trial court erred in concluding that the Legislature's 2009 amendment to section 551.102(4), Florida Statutes, which expanded the scope of the entities authorized to conduct slot machine gaming in Florida, is constitutional because, they contend, it conflicts with Article X, section 23 of the Florida Constitution, which authorized slot machine gaming in Miami–Dade and Broward Counties if approved by county-wide referendum. Because we agree with the trial court that the statutory amendment is constitutional, we affirm.

On November 2, 2004, Florida voters approved a ballot initiative, adding Article X, section 23 to the Florida Constitution. It provides in part:

(a) After voter approval of this constitutional amendment, the governing bodies of Miami–Dade and Broward Counties each may hold a county-wide referendum in their respective counties on whether to authorize slot machines within existing, licensed pari-mutuel facilities (thoroughbred and harness racing, greyhound racing, and jai-alai) that have conducted live racing or games in that county during each of the last two calendar years before the effective date of this amendment. If the voters of such county approve the referendum question by majority vote, slot machines shall be authorized in such pari-mutuel facilities. If the voters of such county by majority vote disapprove the referendum question, slot machines shall not be so authorized, and the question shall not be presented in another referendum in that county for at least two years.

(b) In the next regular Legislative session occurring after voter approval of this constitutional amendment, the Legislature shall adopt legislation implementing this section and having an effective date no later than July 1 of the year following voter approval of this amendment. Such legislation shall authorize agency rules for implementation, and may include provisions for the licensure and regulation of slot machines. The Legislature may tax slot machine revenues, and any such taxes must supplement public education funding statewide.

In 2005, voters in Broward County approved slot machines pursuant to a county-wide referendum. That same year, the Legislature enacted chapter 551, Florida Statutes. Section 551.101, entitled “Slot machine gaming authorized,” mirrored the language of Article X, section 23. The Legislature defined “eligible facility” as:

any licensed pari-mutuel facility located in Miami–Dade County or Broward County existing at the time of adoption of s. 23, Art. X of the State Constitution that has conducted live racing or games during calendar years 2002 and 2003 and has been approved by a majority of voters in a countywide referendum to have slot machines at such facility in the respective county.

§ 551.102(4), Fla. Stat. (2005). In 2008, voters in Miami–Dade County approved slot machines pursuant to a county-wide referendum.

In 2009, the Legislature amended the definition of “eligible facility” to include not only the facilities included in the original statute but also:

any licensed pari-mutuel facility located within a county as defined in s. 125.011, provided such facility has conducted live racing for 2 consecutive calendar years immediately preceding its application for a slot machine license, pays the required license fee, and meets the other requirements of this chapter; or any licensed pari-mutuel facility in any other...