State Ex Rel. Biscayne Kennel Club v. Stein

• Citation: 130 Fla. 517,178 So. 133
• Parties: STATE ex rel. BISCAYNE KENNEL CLUB, Inc. v. STEIN et al. STATE ex rel. MIAMI BEACH KENNEL CLUB, Inc. v. SAME. STATE ex rel. WEST FLAGLER AMUSEMENT CO., Inc. v. SAME.
• Decision Date: 06 January 1938
• Court: United States State Supreme Court of Florida

178 So. 133

130 Fla. 517

STATE ex rel. BISCAYNE KENNEL CLUB, Inc. v. STEIN et al.

STATE ex rel. MIAMI BEACH KENNEL CLUB, Inc. v. SAME.

STATE ex rel. WEST FLAGLER AMUSEMENT CO., Inc. v. SAME.

Florida Supreme Court

January 6, 1938

Original proceedings by the State of Florida, on the relation of the Biscayne Kennel Club, Inc., by the State of Florida, on the relation of the Miami Beach Kennel Club, Inc., and by the State of Florida, on the relation of the West Flagler Amusement Company, Inc., in mandamus against Joseph R. Stein and others to require a reapportionment of racing dates in Dade county, Fla., wherein a rule nisi was issued upon the petition of the Biscayne Kennel Club, Inc.

Rule nisi quashed, and petitions dismissed.

COUNSEL Robert C. Lane and Marion E. Sibley, both of Miami, Brantley Brannon, of Lake City, and Whitfield &amp Whitfield, of Tallahassee, for Biscayne Kennel Club, Inc.

Carl T Hoffman, of Miami, for Miami Beach Kennel Club, Inc.

S. P Robineau and John P. Stokes, both of Miami, for West Flagler Amusement Co. Inc.

H. P. Baya, of Miami, for respondents.

OPINION

PER CURIAM.

It has been made to appear by petitions in this court that the Miami Beach Kennel Club, Inc., West Flagler Amusement Co., Inc. and the Biscayne Kennel Club Inc., each operate a dog track in Dade county, Fla., under permits duly authorized by statute; that the State Racing Commission of Florida, on September 3, 1937, met, heard applications, and allotted to the several dog tracks in Dade county the following apportionment of racing days and dates:

Biscayne Kennel Club, Inc., from December 1, 1937, to January 15, 1938, less December 20, 21, 22, 23, and 24, 1937; and from February 26, 1938, to April 9, 1938.

Miami Beach Kennel Club, Inc., from January 3, 1938, to March 26, 1938.

West Flagler Amusement Co., Inc., from January 17, 1938, to April 9, 1938.

On December 6, 1937, the West Flagler Amusement Co., Inc., and the Miami Beach Kennel Club, Inc., filed in this court petitions for alternative writs of mandamus directed to the Florida State Racing Commission seeking a reapportionment of racing dates, and writs issued on the petitions and were each directed to the State Racing Commission to show cause on the 9th day of December, 1937, why peremptory writs of mandamus should not issue. The Florida State Racing Commission on December 9, 1937, met, reconsidered its order dated September 3, 1937, and by resolution amended the order previously entered by granting ninety days of racing to each of the three dog tracks situated in Dade county, and apportioned them, viz.:

Biscayne Kennel Club, Inc., from December 1, 1937, to March 15, 1938.

Miami Beach Kennel Club, Inc., from December 27, 1937, to April 9, 1938.

West Flagler Amusement Co., Inc., from December 27, 1937, to April 9, 1938.

On December 11, 1937, Biscayne Kennel Club, Inc., filed its petition in mandamus against the Florida State Racing Commission alleging, among other things, its entering into contracts for music, personnel, advertisement, broadcasting, etc., based upon an allotment of seventy-two days on September 3, 1937, to the Biscayne Kennel Club, Inc., and its financial inability to operate for a period of ninety days; that the Biscayne Kennel Club, Inc., had not been heard on December 9, 1937, when a resolution was adopted reapportioning said racing days and dates by the Florida State Racing Commission, and charged manifest unfairness on the part of the Racing Commission, and that the court should grant its writ restoring the status quo ante and that the commission should be required to defend the proceedings instituted against it by the West Flagler and Miami Beach dog tracks, and that a rule nisi issue and be served upon the State Racing Commission.

It was further ordered that the alternative writs of mandamus previously issued be extended until December 18, 1937, for the consideration and convenience of the Florida State Racing Commission. When the State Racing Commission met on December 15, 1937, it heard the Biscayne Kennel Club, Inc., the West Flagler Amusement Co., Inc., and the Miami Beach Kennel Club, Inc., their officers and counsel, and heard facts and arguments with reference to the re-apportionment of racing dates among the three dog tracks situated in Dade county, Fla., and did reaffirm its decision of December 9, 1937.

On December 17, 1937, the Biscayne Kennel Club, Inc., filed an amendment to its petition in mandamus in this court filed under date of December 11, 1937, and reaverred that the Racing Commission was under a misapprehension as to all the facts in entering its order allowing ninety racing days to the three dog tracks.

On December 17, 1937, a rule nisi issued and was served on the State Racing Commission, and on December 29, 1937, an answer thereto was filed in this court to the effect that upon notice to the dog track owners of Dade county, Fla., a hearing was held on September 3, 1937, for the purpose of setting racing dates, attended by all the petitioners. On December 1, 1937, the Miami Beach Kennel Club, Inc., and West Flagler Amusement Co., Inc., applied to the Racing Commission, praying an allotment of the full 90 days authorized by law for racing. On December 7, 1937, the Racing Commission was served with alternative writs of mandamus, and, in compliance therewith, convened on December 9, 1937, and allotted to each of the dog tracks in Dade county, Fla., 90 days of racing and apportioned the same fairly and impartially, without discrimination or prejudice for or against either track. That a second hearing was held, attended by the track owners, officers, and attorneys on December 15, 1937, and, after a full hearing to all interested parties, adopted a resolution, copy of which is attached to and made a part of the answer, reaverring its action of December 9, 1937.

A motion to consolidate the three suits was granted and the Biscayne Kennel Club, Inc., on December 31, 1937, moved the court for a peremptory writ of mandamus, regardless of the answer of the State Racing Commission.

It is contended by counsel for Biscayne Kennel Club, Inc., that the allotment or apportionment of racing days and dates on September 3, 1937, granted as to these assigned racing days and dates a franchise, right, or interest which could not be altered or changed by a subsequent order of the Florida Racing Commission; that it was made known to the Racing Commission on September 3, 1937; that it was financially unable to race for a period of 90 days; that expenditures were necessary to improve the plant; that obligations for music, entertainers, radio, and other forms of advertisements would be created or established and after these expenditures and obligations the change of racing days and dates would incur heavy losses to it; that the license or permit issued by the Racing Commission is closely related in operation to a license issued by a city to a person to construct a building, and, when once granted, cannot be revoked. The cases of Pratt v. City of Denver, 72 Colo. 51, 209 P. 508; Fuller v. Schwab, 124 Misc 659, 208 N.Y.S. 289; Lowell v. Archambault, 189 Mass. 70, 75 N.E. 65; General Baking Co. v. Board of Street Com'rs, 242 Mass. 194, 136 N.E. 245, and other authorities, are cited to sustain their view. Counsel cannot overlook the fact that racing in Florida is not a right but a privilege which may be granted or...