Gretna Racing, LLC v. Dep't of Bus. & Prof'l Regulation

• Decision Date: 29 May 2015
• Docket Number: CASE NO. 1D14-3484
• Court: Florida District Court of Appeals
• Parties: GRETNA RACING, LLC, Appellant, v. DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION, DIVISION OF PARI-MUTUEL WAGERING, Appellee.

GRETNA RACING, LLC, Appellant, v. DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION,DIVISION OF PARI-MUTUEL WAGERING, Appellee.

CASE NO. 1D14-3484

DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA

May 29, 2015

NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

An appeal from a Final Order of the Department of Business and Professional Regulation.

Marc W. Dunbar, Tallahassee and David S. Romanik of David S. Romanik, P.A., Oxford, for Appellant.

David J. Weiss of Ausley & McMullen, P.A., Tallahassee, for Amicus Curiae Gadsden County, Florida in support of Appellant.

Pamela Jo Bondi, Attorney General, Allen Winsor, Solicitor General, Adam S. Tanenbaum, Chief Deputy Solicitor General, and Jonathan A. Glogau, Chief, Complex Litigation, Tallahassee, for Appellee.

BENTON, J.

Gretna Racing, LLC (Gretna Racing) appeals the Final Order of the Department of Business and Professional Regulation, Division of Pari-MutuelWagering (Department) denying Gretna Racing's application for a license to conduct slot machine gaming at its horsetrack facility in Gadsden County. Because the Department's denial rests on grounds that cannot be reconciled with the controlling statute, we reverse.

On November 1, 2011, Gadsden County Commissioners voted to put a referendum regarding slot machine gaming on a January 31, 2012 ballot. At the January 31, 2012 election, a majority of those voting in the countywide referendum voted "yes" on the question, "Shall slot machines be approved for use at the pari-mutuel horsetrack facility in Gretna, FL?" Nearly two years later, on December 11, 2013, Gretna Racing made application to the Department for a license to conduct slot machine gaming at its horsetrack facility in Gretna.

The Department notified Gretna Racing on December 23, 2013, that it had denied the application. The Department did not base denial of the license on any error, omission, or deficiency in Gretna Racing's application or on any defect in submissions accompanying the application. One stated basis for denial invoked an opinion of the Attorney General,¹ and the only other stated ground for denial wasthat, in article X, section 23 of the Florida Constitution, "only two counties are listed, 'Miami-Dade and Broward,' see Art. X, § 23(a)." As Gretna Racing's "pari-mutuel facility is located in Gadsden County," the Department's letter continued, "which is not a 'county as specified in s. 23, Art. X of the State Constitution,' see § 551.104(2), Fla. Stat., [Gretna Racing's] application to conduct slot machine gaming in Gadsden County must, as a matter of law, be denied for this reason as well." Likewise relying on Florida Attorney General Opinion 2012-01, the Final Order states "the January 31, 2012 referendum in Gadsden County was not held pursuant to a statute or constitutional provision: (1) specifically authorizing a referendum to approve slot machines; and (2) enacted after 551.102(4) of the Florida Statutes became effective on July 1, 2010." Gretna Racing now appeals the Final Order.

In deciding whether denial for these reasons was lawful, historical context is important. On November 2, 2004, Florida voters approved a ballot initiative, adding article X, section 23 to the Florida Constitution, which 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 toauthorize slot machines within existing, licensed parimutuel 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 parimutuel facilities. . . .

(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.

(Emphasis supplied.) In 2005, the Legislature enacted Chapter 551, Florida Statutes. See Ch. 2005-362, § 1, at 66-86, Laws of Fla. Section 551.102(4), Florida Statutes (2006), defined an "[e]ligible 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.

(Emphasis supplied.) While the sequence of events and its legislative history make clear that section 551.102 was enacted to implement article X, section 23, theLegislature's constitutional prerogative to authorize slot machines (as opposed to lotteries) is broader than article X, section 23.

Indeed, the Legislature has plenary authority over slot machines, authority the parties do not question here.² "The Constitution of Florida is a limitation of power, and, while the Legislature cannot legalize any gambling device that would in effect amount to a lottery [other than state operated lotteries authorized by article X, section 15 of the Florida Constitution], it has inherent power to regulate [or not] or to prohibit [or not] any and all other forms of gambling." Lee v. City of Miami, 163 So. 486, 490 (Fla. 1935) (alterations in original). Accord, Hialeah Race Course, Inc. v. Gulfstream Park Racing Ass'n, 37 So. 2d 692, 694 (Fla. 1948) ("Authorized gambling is a matter over which the state may . . . exercise its policepower . . . ."); Pasternack v. Bennett, 190 So. 56, 57 (Fla. 1939) ("[I]t is . . . settled in this jurisdiction that those devices commonly known as slot machines are gambling devices . . . subject to the police power of the State to regulate, control, prohibit or destroy them."); Eccles v. Stone, 183 So. 628, 631-32 (Fla. 1938) (recounting that the Legislature legalized the operation of slot machines in 1935, then prohibited the operation of coin-operated gambling devices in 1937, and that the "state policy has for many years been against all forms of gambling, with the exception of the legislative enactment legalizing parimutuel wagers on horse racing and the 1935 Act legalizing the operation of slot machines"); Fla. Gaming Ctrs., Inc. v. Fla. Dep't of Bus. & Prof'l Regulation, 71 So. 3d 226, 229 (Fla. 1st DCA 2011) ("The Legislature has broad discretion in regulating and controlling pari-mutuel wagering and gambling . . . .").

The broad reach of legislative authority over slot machines and pari-mutuel wagering notwithstanding, the Legislature is subject, in this area, too, to constitutional restrictions on special laws and general laws of local application. Compare, e.g., Dep't of Bus. Regulation v. Classic Mile, Inc., 541 So. 2d 1155, 1158-59 (Fla. 1989) (holding statute regarding thoroughbred horse racing was unconstitutional as a special law in the guise of a general law because Marion County was the sole county that would ever fall within the statutorily designated class of counties eligible for licensure; rejecting argument that "the regulatoryresponsibilities given to the state under the statute [were] part of the overall statewide regulatory scheme for the parimutuel industry, thereby rendering the statute a general law"; and rejecting argument that the statewide impact of revenue that might be generated as a result of the statute rendered the statute a general law),³ with, e.g., License Acquisitions, LLC v. Debary Real Estate Holdings, LLC, 155 So. 3d 1137, 1142, 1147 (Fla. 2014) (holding a statute that authorized a jai alai facility to convert to a dog track under certain circumstances was a valid general law "because there is a reasonable possibility that it could apply to ten of the eleven jai alai permits in the state" and rejecting an interpretation of the statute that would render it an unconstitutional special law).⁴ Constitutional restrictions onspecial laws and general laws of local application may help explain resort to the ballot initiative that resulted in article X, section 23.

In 2009, the Legislature amended section 551.102(4), originally enacted to implement article X, section 23, in order to authorize slot machines in pari-mutuel facilities not covered by article X, section 23. The amendment expanded the definition of "eligible facility" in two steps, first with this language:

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.

Ch. 2009-170, § 19, at 1792, Laws of Fla. (emphasis supplied). As our supreme court explained in Golden Nugget Group v. Metropolitan Dade County, 464 So. 2d 535, 536 (Fla. 1985), county, as defined in s. 125.011(1) refers to Miami-Dade County and to no other county.⁵ But the 2009 statutory amendment further expanded the definition of "eligible facilities" with this additional language:

any licensed pari-mutuel facility in any other county in which 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, provided such facility has conducted a full schedule of live racing for 2

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