State ex rel. Biscayne Kennel Club v. Board of Business Regulation of Dept. of Business Regulation of State

• Decision Date: 18 April 1973
• Docket Number: No. 43407,43407
• Citation: 276 So.2d 823
• Parties: STATE of Florida, on the relation of BISCAYNE KENNEL CLUB, a Florida corporation, and West Flagler Associates, Ltd., a Florida limited partnership, Relators, v. BOARD OF BUSINESS REGULATION OF the DEPARTMENT OF BUSINESS REGULATION OF the STATE of Florida, et al., Respondents.
• Court: Florida Supreme Court

Page 823

276 So.2d 823

STATE of Florida, on the relation of BISCAYNE KENNEL CLUB, a Florida corporation, and West Flagler Associates, Ltd., a Florida limited partnership, Relators, v. BOARD OF BUSINESS REGULATION OF the DEPARTMENT OF BUSINESS REGULATION OF the STATE of Florida, et al., Respondents.

No. 43407.

Supreme Court of Florida.

April 18, 1973.

George W. Wright, Jr., of Mershon, Sawyer, Johnston, Dunwoody and Cole, Miami, and Bruce G. Davis, Tallahassee, for Biscayne Kennel Club, Inc.

Stuart W. Patton and Donald W. Stobs, Jr., of Patton, Kanner, Nadeau, Segal & Stobs, Miami, for West Flagler Associates, Ltd.

Herbert Klein, Tallahassee, for Dept. of Business Regulation, Bd. of Business Regulation, Division of Pari-Mutual Wagering.

Carl Timothy Hoffman of Kemper & Kemper, Miami Shores, for Miami Beach Kennel Club, Inc.

ADKINS, Justice.

In this original mandamus proceeding an alternative writ was issued, respondents' returns and relators' reply were filed, and relators now seek a peremptory writ. We have jurisdiction, Fla.Const., art. V, § 3(b)(5), F.S.A., Florida Appellate Rule 4.5(b), 32 F.S.A., and dispense with oral argument. F.A.R. Rule 3.10(e).

The Board of Business Regulation, (referred to as the 'Board'), is vested with the responsibility to allocate and approve dates for racing at greyhound racing tracks. The relators, Biscayne Kennel Club, (hereinafter referred to as 'Biscayne'), and West Flagler Associates, Ltd., (hereinafter referred to as 'Flagler'), made application to the Board for annual licenses to conduct dog racing and for the awarding of racing dates for the 1973--1974 racing season.

The Board considered the racing date applications of all Florida dog tracks and awarded the dates requested (105 racing dates, together with matinee dates and charity and scholarship dates) by all tracks except the three Dade County dog tracks and four other dog tracks (Jefferson County Kennel Club, Pensacola Greyhound Racing, Inc., Sarasota Kennel Club, Inc., and Washington County Kennel Club, Inc.) in single track counties. The Board concluded that it was not legally authorized to award dates based upon the traditional September to September racing season as requested by Biscayne and Flagler. This conclusion was based upon a statement of the District Court of Appeal, Third District, in West Flagler Associates, Ltd. v. Board of Business Regulation, 262 So.2d 23 (Fla.App.3d, 1972), which reads as follows:

'We find merit in the position advanced (apparently for the first time) by counsel for Miami Beach, that allocation of dog racing dates on a calendar year basis is improper because the law provides for selections of dates by dog racing permittees (or allocations thereof by the Board when reguired) to be made on a fiscal year basis.' (p. 25)

'(W)e view as correct the argument that the law calls for selections and allocations of dates for dog racing permittees to be on the fiscal year basis, so that in the future the law in that respect should be followed by the Board, but since the question was not presented to the court sufficiently in advance of the allocation of dates with which we are now concerned, the failure of the Board to so proceed with regard to the present allocations should not be disturbed.' (p. 26)

If dates were awarded on a July 1st through June 30th fiscal year basis commencing with the 1973--1974 racing season, the 'fiscal year' for Dade County tracks would be limited to the period from September 5, 1973 through June 30, 1974, as the Board's award of the 'summer' dates to Biscayne for the 1972--1973 traditional September to September racing season encompassed the period of July 1, 1973 through September 4, 1973, making the latter dates unavailable for current allocation.

This Court in West Flagler Associates, Ltd. v. Board of Business Regulation, 265 So.2d 507 (Fla.1972), denied the petitions of Flagler and Miami Beach Kennel Club, (hereinafter referred to as the 'Beach'), seeking a writ of certiorari to review and quash the above-quoted decision of the District Court of Appeal, Third District. In denying the petitions for writ of certiorari, the Court said:

'This Court has twice in recent years considered petitions from the West Flagler dog track and twice held that it was an abuse of discretion for the state racing authorities not to allocate the summer racing dates to West Flagler rather than to the Biscayne Kennel Club dog track. See West Flagler Associates, Ltd. v. Board of Business Regulation, 241 So.2d 369 (Fla.1970) and West Flagler Associates, Ltd. v. Division of Pari-Mutuel Wagering, 251 So.2d 856 (Fla.1971).

'However, in the case last decided (West Flagler Associates, Ltd. v. Davision of Pari-Mutuel Wagering, supra) we indicated that an actual test of the racing performances of the two tracks, West Flagler and Biscayne, appeared to be in order to try to equitably settle the controversy as to which of the two tracks could best perform.' (p. 508)

The statement of the District Court of Appeal in its opinion requiring the allocation of dates to be on the fiscal year basis in the future was not essential to the decision of that court and is without force as precedent. See Pell v. State, 97 Fla. 650, 122 So. 110 (1929); Dade County v. Brigham, 47 So.2d 602 (Fla.1950); 5 F.L.P., Courts, § 54, 8 Fla.Jur., Courts, § 168. Although this Obiter dictum conflicted with past decisions of this Court, the constitution, both before and after the 1972 Revision, provided that the Supreme Court 'may review' by certiorari any decision of a District Court of Appeal that is in direct conflict with a decision of this Court. Fla.Const., art. V, § 4(2) (1885). When the petition for certiorari in West Flagler Associates, Ltd. v. Board of Business Regulation (Fla., 265 So.2d 507) was denied, this Court did not take jurisdiction because the allocation of the dates was in accordance with previous decisions of the Court. Therefore, this Court did not consider the issue of 'fiscal year' in its denial of certiorari.

The Board has a ministerial legal duty to allocate dates among the three Dade County dog tracks on the basis of a full and complete racing season. West Flagler Associates, Ltd. v. Board of Business Regulation, 241 So.2d 369 (Fla.1970). Its duty in that respect is not discretionary and its abrogation of that duty in this instance is based solely on an erroneous interpretation of law that it does not have authority to award dates beyond June 30, 1974 (less than a full and complete racing season).

Relators, Flagler and Biscayne, allege that they are entitled to licenses to operate their pari-mutuel establishments on the dates requested by them, subject only to the Board's approval for exercise of its discretion as defined by this Court in West Flagler Associates, Ltd. v. Board of Business Regulation, 241 So.2d 369 (Fla.1970) as follows:

'Where several dog tracks in a single county request racing 'dates' which are not in conflict, the Board and the Division should allocate these dates to the respective dog tracks, in the absence of a strong showing that the interests of the state are being adversely affected by the allocation of such dates. The factors to be considered are discussed in State ex rel. West Flagler Kennel Club, Inc. v. Florida State Racing Commission, 74 So.2d 691 (Fla.1954).' (p. 378)

At the Board's hearing it was established by counsel for all three tracks in Dade County that there was no material changes in the tracks, or their facilities, which would affect the finding of the Board contrary to the finding made in the hearing establishing the dates for the year 1972--1973, wherein the Board determined that the best racing season was the summer period, the next best, the fall racing season, and the least desirable was the winter season. The exhibits submitted by relators reflecting changes in the economic aspects of their respective tracks did not in any way materially alter or vary the basis upon which the Board of Business Regulation made its findings for the year 1972--1973.

The applications were for the following dates:

                Track                    Dates
                --------  -----------------------------------
                Biscayne  Sept. 5, 1973 through Nov. 6, 1973
                          July 3, 1974 through Sept. 4, 1974
                          (109 days, including 4 charity and
                          scholarship dates and 50 matinees.)
                Flagler   Nov. 7, 1973 through Jan. 9, 1974
                          May 1, 1974 through July 2, 1974
                          (109 days, including 4 charity and
                          scholarship dates and 50 matinees.)
                Beach     Nov. 1, 1973 through March 1, 1974;
                          (104 days, including 4 charity and
                          scholarship dates and "all matinees
                          to which we may be entitled under
                          rules of the P-M Division.")
                

There were therefore conflicting requests for racing dates between Biscayne and Beach for the period of November 1, 1973 through November 6, 1973, and between Flagler and Beach for the period of November 7, 1973 through January 9, 1974. None of the tracks requested the time from March 2, 1974 to May 1, 1974, which has normally been the last part of the winter racing season.

If each of the three tracks were granted the dates requested in their applications, there would be two tracks operating in Dade County during the period of November 1, 1973 through January 9, 1974, and no dog racing in Dade County from March 2, 1974 to May 1, 1974. In West Flagler Associates, Ltd. v. Board of Business Regulation, (Fla.1970), Supra, this Court dealt with an analogous situation with regard to these three tracks when we said:

'When two or more tracks in the same county request the same 'dates' for dog racing, the Division may exercise a greater discretion in determining whether it would be in the best interests of the state to allow such competition or to allocate separate racing dates.' 241 So.2d 369, p. 378.

These guidelines with respect to conflicting and nonconflicting requests for dates in counties with...