State ex rel. Gerstein v. Hialeah Race Course, Inc.

• Decision Date: 25 February 1971
• Docket Number: No. 39981,39981
• Citation: 245 So.2d 53
• Parties: STATE of Florida ex rel. Richard E. GERSTEIN as State Attorney for the 11th Judicial Circuit of the State of Florida, Appellant, v. HIALEAH RACE COURSE, INC., et al., Appellees.
• Court: Florida Supreme Court

Page 53

245 So.2d 53

STATE of Florida ex rel. Richard E. GERSTEIN as State Attorney for the 11th Judicial Circuit of the State of Florida, Appellant, v. HIALEAH RACE COURSE, INC., et al., Appellees.

No. 39981.

Supreme Court of Florida.

Feb. 25, 1971.

Robert L. Shevin, Atty. Gen., and Roger W. Foote, Asst. Atty. Gen., for appellant.

James Knight of Walton, Lantaff, Schroeder, Carson & Wahl, Miami and Chester Bedell, Jacksonville, for Hialeah Race Course, Inc. and Eugene Mori.

Marion E. Sibley and Allan M. Glaser of Sibley, Giblin, Levenson & Ward, Miami Beach, and Worley & Gautier, Miami, for Tropical Park, Inc. and Saul Silberman.

PER CURIAM.

We have before us a direct appeal taken by the State of Florida on the relation of Richard E. Gerstein, a State Attorney, from an Order of the Circuit Court, Dade County, dismissing a complaint directed against appellees for alleged violation of Fla.Stat. § 99.161, F.S.A. In the Order, the Circuit Court held that Fla.Stat. § 99.161(1)(a) (1965), F.S.A., was unconstitutional as violative of the Equal Protection provisions of the State and Federal Constitutions; also, Fla.Stat. § 104.27(4), F.S.A., providing the penalty for any violation of the statute declared unconstitutional, was struck down as null and void. In our judgment the complaint was properly dismissed, although not for the reasons given below.

It came to the knowledge of the relator that appellees, as corporations and corporate officers operating racing tracks, allegedly contributed a sum in excess of $72,000.00 to the 1964 and 1966 political campaigns of former Governor Haydon Burns. Under authority of Fla.Stat. § 104.27(10), F.S.A., relator caused a complaint alleging the violations to be filed with the Circuit Court of Dade County. On motion of appellees, the Circuit Court entered the Order now under review, which dismissed the complaint on several grounds.

First, the Circuit Court found that Fla.Stat. § 99.161(1)(a) (1965), F.S.A., the statute directly affecting appellees, was unconstitutional. In pertinent part, this subsection provided that:

'No person holding a horse or dog racing permit * * * nor any officer, director, or supervisory employee of a corporation holding such a permit * * * shall make, directly or indirectly, any contribution of any nature to any political party or for any candidate for nomination for, or election to, political office in the state.'

Starting with the undeniable premise that horse racing, dog racing and the game of jai alai all belonged to that classification of authorized gambling known as pari-mutuel betting operations, ¹ the Circuit Court determined that Fla.Stat. § 99.161(1)(a), F.S.A., violated the equal protection mandate by singling out horse and dog racing permitholders while standing mute as to jai alai fronton operators. We are not impressed with this reasoning because jai alai fronton operators are prohibited from making political contributions by the interaction of statutes other than Fla.Stat. § 99.161(1)(a), F.S.A., Chapter 551, Florida Statutes, F.S.A., relating to jai alai frontons, specifies through Sections 551.03 and 551.12 that unless otherwise provided, the provisions of Chapter 550, relating to horse and dog racing, apply to Chapter 551. We find in Chapter 550 that under Fla.Stat. § 550.07, F.S.A.: 'It is unlawful for any licensee under this chapter, directly or indirectly, to make any contribution whatsoever to any political party or to any candidate * * *.' Since no contrary language is contained in Chapter 551, it follows that the ban on contributions imposed by Fla.Stat. § 550.07, F.S.A. carries over to jai alai fronton permitholders and their officers as well. This being so, the fact that jai alai was not mentioned in Fla.Stat. § 99.161(1)(a) (1965), F.S.A., does not evince a denial of equal protection since the statute did not alter the status quo: all in the classification remained under the political contribution ban notwithstanding passage of the statute. The Circuit Court erred by holding the statute unconstitutional; additionally, it was error for the Court to declare Fla.Stat. § 104.27(4), F.S.A., null and void on the theory that it provided a penalty for an unconstitutional statute.

Second, after making its constitutional ruling, the Circuit Court went on to treat the issue of statutory limitations upon prosecution for the offenses alleged to have occurred. The Court correctly determined that as to appellee Tropical Park and its President-Treasurer, the late Saul Silberman, any action by the State was barred by Fla.Stat. § 99.161(13), F.S.A.: 'Prosecution for the violation of any of the provisions of this section may be commenced before, but not after, four years shall have elapsed from the date of the violation.' The last alleged violation concerning these appellees is said to have occurred in 1964, or six years prior to commencement of this action.

But the Court erred by finding that as to appellees Hialeah Race course, Inc. and its President, Eugene Mori, the applicable statute of limitations had also run. The last alleged contribution made by these appellees is said to have occurred on April 26, 1966, which just falls by a matter of days within the four-year limit set out by Fla.Stat. § 99.161(13), F.S.A. The Circuit Court concluded that the limitation period which controlled was not this statute, but rather Fla.Stat. § 95.11(7)(a), F.S.A., which provided for a one year limit on actions not related to real property when the action was: 'An action by the state for a penalty or forefiture under a penal act of the legislature * * *.' Appellees Hialeah and Mori had contended below that since an action under Fla.Stat. § 99.161, F.S.A., by the State could result in revocation of track permits along with fines and possible imprisonment, the limitation on action set out in Fla.Stat. § 95.11(7)(a), F.S.A. could apply. Reasoning then that both Fla.Stat. § 99.161(13), F.S.A. and Fla.Stat. § 95.11(7)(a), F.S.A. could apply, appellees conceived it to be the rule that the shorter statute would apply. The Circuit Court agreed with this theory and, citing as authority Lucom v. Atlantic National Bank of West Palm Beach, 354 F.2d 51 (5th Cir. 1965), it held that any action against appellees Hialeah and Mori was barred by the one year statute of limitations.

We do not agree with this ruling. In Lucom, the federal court briefly noted the following Florida cases concerned with the interaction of conflicting statutes of limitation: Beck v. Barnett National Bank, 142 So.2d 329 (Fla.1962); Palmquist v. Johnson, 41 So.2d 313 (Fla.1949); State ex rel. Ashby v. Haddock, 149 So.2d 552 (Fla.1963); and Perry v. Reichert, 113 Fla. 125, 151 So. 403 (1933). Among other observations, the federal court said that, '(F) lorida cases hold that when two statutes limit the...