Gulfstream Park Racing Ass'n, Inc. v. State Dept. of Business Regulation, Div. of Pari-Mutuel Wagering, PARI-MUTUEL

• Decision Date: 17 August 1983
• Docket Number: No. 83-1492,PARI-MUTUEL,83-1492
• Citation: 443 So.2d 113
• Parties: GULFSTREAM PARK RACING ASSOCIATION, INC., a Florida corporation, Petitioner, v. STATE of Florida, DEPARTMENT OF BUSINESS REGULATION, DIVISION OFWAGERING and State of Florida Department of Business Regulation, Florida Pari-Mutuel Commission, Respondents. Hialeah, Inc. and Tropical Park, Inc., Amici Curiae.
• Court: Florida District Court of Appeals

Page 113

443 So.2d 113

GULFSTREAM PARK RACING ASSOCIATION, INC., a Florida corporation, Petitioner, v. STATE of Florida, DEPARTMENT OF BUSINESS REGULATION, DIVISION OF PARI-MUTUEL WAGERING and State of Florida Department of Business Regulation, Florida Pari-Mutuel Commission, Respondents Hialeah, Inc. and Tropical Park, Inc., Amici Curiae.

No. 83-1492.

District Court of Appeal of Florida Third District.

Aug. 17, 1983.

Landefeld & Romanik and David S. Romanik, Hollywood, for petitioner.

Elliot Henslovitz, David M. Maloney and Harry Pernell, Tallahassee, for respondents.

Horne, Rhodes, Jaffry & Horne and Edward S. Jaffry, Taylor, Brion, Buker & Greene and James C. Pilkey, Tallahassee, for amici curiae.

Before SCHWARTZ, C.J., and BASKIN and DANIEL S. PEARSON, JJ.

DANIEL S. PEARSON, Judge.

In this world, nothing is certain but death, taxes and that Gulfstream and Hialeah will do annual battle for the highly desirable "middle dates" of South Florida's winter thoroughbred racing season. ¹ We have been called upon to referee the 1983 fight or, at least, the opening rounds.

I.

In December 1982, Gulfstream Park Racing Association, Inc. (Gulfstream) filed its application requesting that the Florida Pari-Mutuel Commission (Commission) allocate to Gulfstream January 9, 1984, through March 6, 1984, the so-called "middle dates," for its race meeting and that the Division of Pari-Mutuel Wagering (Division) issue to Gulfstream a license to conduct thoroughbred racing. The simultaneous application of Hialeah, Inc. (Hialeah) contained the identical requests.

At or about the same time as it made its application, Gulfstream brought suit in the Circuit Court in Dade County for declaratory and injunctive relief. Gulfstream's suit called into question the constitutionality of Section 550.081, Florida Statutes (1981). Gulfstream asserted that the statute which authorizes the Commission to allocate racing dates among permitholders during the winter thoroughbred racing season is an unlawful delegation of legislative authority because it is lacking in guidelines or standards to be used by the Commission in making its allocation decision. Because this same constitutional issue was then pending before the Fourth District Court of Appeal (the chosen referee of the 1982 version of the Hialeah-Gulfstream confrontation), the parties agreed below to await the decision of the Fourth District and, concomitantly, to have removed from the Commission's January 1983 agenda their allocation applications, to waive the time requirements of Section 550.011(2), Florida Statutes (1981), see infra, and agreed further that "[t]he Commission will not consider awarding the three periods for the 1983-1984 Season until after April 15, 1983."

In March 1983, the Fourth District ruled. Its decision prospectively declared Section 550.081, Florida Statutes (1980), unconstitutional as violative of the nondelegation doctrine. See Hialeah, Inc. v. Gulfstream Park Racing Association, Inc., 428 So.2d 312 (Fla. 4th DCA 1983). April, May and most of June 1983 came and went. On June 29, 1983, Gulfstream, fresh from victory in the 1982 bout, sought to avoid the inevitable rematch. Resurrecting Section 550.011(2), Florida Statutes (1981), which provides in pertinent part:

"If the Florida Pari-mutuel Commission does not take action on the request for days of operation and number of performances by March 15 in any year, then the days that are requested that are not in conflict with the operating days of another permitholder within 50 air miles shall be automatically awarded ...,"

Gulfstream petitioned this court to issue a writ of mandamus compelling the Commission to assign to Gulfstream the requested middle dates and compelling the Division to issue the license therefor. Gulfstream argues that its stipulation to waive the March 15 deadline did no more than toll the necessity for Commission action from January 14, 1983, the date of the stipulation, to April 15, 1983, the date after which the Commission was free to act. That being the case, its argument continues, more than ninety days (sixteen before the stipulation and seventy-five after April 15) elapsed from the time of the filing of its application and under Section 120.60(2), Florida Statutes (1981), a license must issue. ²

We immediately issued a rule to show cause to the respondents and learned from their response that on July 1, 1983, the Division had entered an order "awarding" the middle racing dates to Hialeah and the later dates (March 7, 1984, through May 3, 1984) to Gulfstream.

Gulfstream countered with a petition for issuance of extraordinary writ challenging the Division's award to Hialeah under every conceivable theory. Hialeah and Tropical Park, Inc. (Tropical) were thereafter granted leave to appear as amici curiae in these proceedings.

II.

We deny Gulfstream's petition for writ of mandamus. A necessary predicate to mandamus relief is that the duty which the petitioner seeks to have the respondent discharge be ministerial. See State ex rel. Allen v. Rose, 123 Fla. 544, 167 So. 21 (1936); Tallahassee Memorial Regional Medical Center v. Lewis, 399 So.2d 106 (Fla. 1st DCA 1981). The allocation of racing dates, where, as here, more than one track has applied for the same dates, is manifestly not a ministerial function. Cf. State ex rel. Calder Race Course, Inc. v. Department of Professional Business Regulation, 429 So.2d 103 (Fla. 3d DCA 1983) (where sole applicant for particular racing dates indisputably meets all the requirements, conditions and qualifications for a permit to conduct thoroughbred racing, the duty to grant the permit is mandatory and not discretionary); Tropical Park, Inc. v. Department of Business Regulation, 433 So.2d 1329 (Fla. 3d DCA 1983). Gulfstream argues, however, that because the authority of the Commission to allocate in Section 550.081(3), Florida Statutes (1981), has been declared unconstitutional, see Hialeah, Inc. v. Gulfstream Park Racing Association, Inc., 428 So.2d 312, without affecting the severable mandatory provisions of that section or other sections of Chapter 550, Tropical Park, Inc. v. Department of Business Regulation, 433 So.2d 1329 (Fla. 3d DCA 1983), the function of the Commission has been reduced to a ministerial one--award the dates requested by any qualified applicant.

The cornerstone of Gulfstream's argument, whatever its merit otherwise, ³ is the Fourth District's holding that the legislative delegation of power to the Commission to allocate racing dates to competing tracks is unlawful. Because we are of the view that Section 550.081(3) is constitutional despite our sister court's holding to the contrary, Gulfstream's argument is without support. ⁴

Our disagreement with the Fourth District's holding in Hialeah, Inc. v. Gulfstream Park Racing Association, Inc., 428 So.2d 312, lies in that court's rejection of the argument advanced by the Commission that standards and guidelines announced in decisions of the Florida Supreme Court had been implicitly adopted by the Legislature when it reenacted Section 550.081(3) in 1980. We believe this argument has merit.

The first attempt by the Legislature to allocate racing dates between Hialeah, Gulfstream and Tropical came in 1947 when the Legislature in Section 550.081 provided that the track producing the largest amount of tax revenue during the preceding year be given its choice of racing dates, with the next highest producer receiving the second choice. Gulfstream challenged the constitutionality of the statute as being self-perpetuating in favor of Hialeah, which, at the time of enactment, had the middle dates which consistently produced the largest amount of tax revenue. The trial court found the statute unconstitutional, and on appeal the Supreme Court affirmed. See Hialeah Race Course, Inc. v. Gulfstream Racing Association, Inc., 245 So.2d 625 (Fla.1971). Significantly, the court stated:

"The basic effect of our decision is to restore to the State Racing Commission and other appropriate authorities the discretionary power to assign the racing dates among the horse tracks located in Dade and Broward counties in the next and succeeding racing years in the manner provided by law, unaffected by voided § 550.081, Florida Statutes, F.S.A." 245 So.2d at 629-30 (emphasis added).

A year later, in Hialeah Race Course, Inc. v. Board of Business Regulation, 270 So.2d 366 (Fla.1972), the Supreme Court explained what it meant by allocating dates in "the manner provided by law":

"This decision [Hialeah Race Course, Inc. v. Gulfstream Park Racing Association, Inc., 245 So.2d 625] did not vest the Board with an unbridled discretion in fixing the periods of operation for the various horse tracks....

"The effect of our decision in Hialeah Race Course, Inc. v. Gulfstream Park Racing Association, Inc., supra, was to require a reconsideration of racing periods and allocate them in accordance with the following criteria:

"(a) The interest of the State;

(b) The interest of the track owner;

(c) The good-will;

(d) The quality of the horses;

(e) The track facilities;

(f) Geography; and

(g) Skill in management.

"After these criteria have been met, the racing date should be decided in a fair and impartial manner...." 270 So.2d at 369.

The court found further that the constitutionally-required "equality of opportunity" among permittees was satisfied by a fact-finding hearing discussing and applying the seven previous listed criteria. 270 So.2d at 371.

When in 1971 the Supreme Court restored to the State Racing Commission the discretionary power to assign racing dates, no statutory standards or guidelines for the exercise of that discretion existed. When in 1972 the court delineated the criteria for allocation, it did so against the backdrop of a statute that merely vested the Board with discretion to allocate. Assuming, arguendo, that the Legislature was free to adopt other or additional standards consistent...