West Flagler Associates, Ltd. v. Board of Business Regulation
| Decision Date | 20 October 1970 |
| Docket Number | No. 40187,40187 |
| Parties | WEST FLAGLER ASSOCIATES, LTD., Petitioner, Cross-Respondent, v. BOARD OF BUSINESS REGULATION, of the State of Florida, C. C. Harrison, Jr., Chairman, Thomas Wood, Secretary, Charles Rex, Jr., Eugene Toll and Rodger P. Boyle, members of said Board, Department of Business Regulation of the State of Florida and A. R. Brautigam, Executive Director of said Department, Division of Pari-Mutuel Wagering, and Alfred B. Austin, Chairman, Fred J. Akel, Secretary, L. D. Plante, James W. Taylor and L. B. Walker, members of said Division, Biscayne Kennel Club, Inc., a Florida corporation, Investment Corporation of South Florida, a Florida corporation, and Miami Beach Kennel Club, Inc., a Florida corporation, Respondents, Cross-Petitioners. |
| Court | Florida Supreme Court |
Stuart W. Patton and Donald W. Stobs, Jr., of Patton, Kanner, Tietig & Segal, Miami, and Eli H. Subin, of Roth, Segal & Levine, Orlando, for petitioner-cross-respondents.
George W. Wright, Jr., Thomas S. Trantham, Jr., Miami, of Mershon, Sawyer, Johnston, Dunwody & Cole, Miami, and Bruce G. Davis, Tallahassee, for Biscayne Kennel Club, Inc.
Wilbur E. Brewton and J. Riley Davis, Tallahassee, Dominick J. Salfi, Orlando, Earl Faircloth, Atty. Gen., and T. T. Turnbull, Asst. Atty. Gen., for Board of Business Regulations.
Marion E. Sibley, of Sibley, Giblin, Levenson & Ward, Miami Beach, for Investment Corp. of South Florida.
Carl T. Hoffman, of Hoffman, Kemper & Johnson, Miami, for Miami Beach Kennel Club.
By petition and cross-petition for certiorari, we have for review decisions of the District Court of Appeal, First District, in State ex rel. West Flagler Associates, Ltd. v. Board of Business Regulation et al., 238 So.2d 677, (case No. 0--22, op. filed August 31, 1970), and in Biscayne Kennel Club, Inc. v. Board of Business Regulation et al., 239 So.2d 53, (case No. 0--38 op. filed August 31, 1970), which allegedly conflict with prior decisions of this Court on the same point of law. Fla.Const. art. V, § 4, (F.S.A.).
For clarity, Petitioner, West Flagler Associates, Ltd., is referred to as 'Flagler'; Cross-Petitioner, Biscayne Kennel Club, Inc., is referred to as 'Biscayne'; Respondent, Board of Business Regulation and the Members thereof, are referred to as 'the Board'; Respondent, Division of Pari-Mutuel Wagering and the Members thereof, are referred to as 'the Division'; Respondent, Investment Corporation of South Florida, is referred to as 'Hollywood'; and Respondent, Miami Beach Kennel Club, Inc., is referred to as 'Miami Beach.'
Biscayne, Miami Beach, Flagler and Hollywood are greyhound race tracks holding permits to conduct dog racing under the laws of Florida. Biscayne, Miami Beach and Flagler are the only tracks in Dade County, while Hollywood is the only track in Broward County. There are no other greyhound race tracks in Broward County. Prior to April 1, 1970, Biscayne, Miami Beach, Flagler and Hollywood filed their respective applications with the Division for the issuance of annual licenses to conduct dog racing meets and for the fixing by the Division of dog racing dates for the 1970--1971 season.
Biscayne requested that its meet be conducted from September 3, 1970 through January 2, 1971, for a total of one hundred five days of evening racing, unopposed by any other dog track.
Miami Beach requested a total of one hundred five days of evening racing on a split-meet basis from September 3, 1970 through November 3, 1970, and from January 4, 1971 through March 4, 1971. Miami Beach requested the Division to grant it fifty-three noncompetitive racing days and fifty-two competitive days, and 'that each of the greyhound Permittees in the Miami-Hollywood area be likewise allotted fifty-two noncompetitive and fifty-two competitive days of racing, so that they all may be treated equally.'
Flagler requested that they open May 3, 1971 and close on September 1, 1971 for a total of one hundred five days of evening racing.
Hollywood requested a total of one hundred four days of evening racing from November 4, 1970 through March 4, 1971, with the same conditional request as made by Miami Beach relating to fifty-two days of competition and fifty-two days of noncompetition among Hollywood and the three Dade County race tracks.
Under the dates so requested by the tracks, Biscayne and Miami Beach would be in competition from September 3 through November 3; Biscayne and Hollywood would be in competition from November 4 through January 2; Miami Beach and Hollywood would be in competition from January 4 through March 4; and Flagler would run on a noncompetitive basis from May 3, 1971 until September 1, 1971.
There would be no racing from March 4, 1971 until May 3, 1971.
A hearing was held before the Division upon the applications of Biscayne, Miami Beach, Flagler and Hollywood. Biscayne and Flagler both objected to the Division's power and authority to fix and set greyhound racing dates for Hollywood and to apportion the racing dates for the 1970--1971 season among the three Dade County tracks and Hollywood, the sole Broward County track. These objections were overruled by the Division and dates were awarded whereby each of the four tracks would run fifty-two days without competition from any of the other three tracks and fifty-two days in direct competition with one of the other three tracks. The following dates were finally approved by the Division:
Opposed or
Track Dates Days Unopposed
----------- ------------- ---- -----------
Miami Beach 9-3-70 thru 52 Unopposed
11-3-70
7-5-71 thru 52 Opposed by
9-2-71 Flagler
(18 matinees)
Hollywood 11-4-70 thru 52 Unopposed
1-2-71
1-4-71 thru 52 Opposed by
3-4-71 Biscayne
(18 matinees)
Biscayne 1-4-71 thru 52 Opposed by
3-4-71 Hollywood
3-5-71 thru 52 Unopposed
5-4-71
(10 matinees)
Flagler 5-5-71 thru 52 Unopposed
7-3-71
7-5-71 thru 52 Opposed by
9-2-71 Miami Beach
(50 matinees)
(In the context of this case, opposed and unopposed dates mean competitive and noncompetitive dates.)
Biscayne then filed appeals with the Board to review the Division's action in fixing and apportioning among Biscayne, Hollywood, Miami Beach and Flagler racing dates for the 1970--1971 greyhound racing system. Flagler filed its joinder as an appellant in the appeal taken by Biscayne, but the Board, upon motions by Hollywood and Miami Beach, dismissed Flagler joinder as an appellant leaving it as an appellee in Biscayne's case. Flagler then filed with the District Court of Appeal, First District, (hereinafter referred to as the 'District Court'), a petition for the issuance of an alternative writ of mandamus and for the issuance of a rule nisi in prohibition directed to the actions of the Division in fixing and allocating amount three Dade County greyhound tracks and one Broward greyhound track racing dates for the 1970--1971 racing system and also directed to the Board's order dismissing Flagler joinder in appeal from the decision of the Division. This is case No. 0--22 in the District Court.
Flagler argued in case No. 0--22 that the Division was required by Fla.Stat. § 550.083, F.S.A., to allow a Permittee to have the racing dates it request and the Division could not lawfully attempt to allocate dates as among the Dade County dog tracks unless they requested competing conflicting dates.
Biscayne filed a petition for writ of certiorari in the District Court in case No. 0--38 and moved for a consolidation of its petition with Flagler's prohibition and mandamus proceeding. The consolidation was denied. It should be noted that the parties in both the Flagler and Biscayne proceedings were the same. The District Court filed its opinion and decision in the mandamus and prohibition proceedings of Flagler discharging its alternative writ of mandamus theretofore issued and denying Flagler's petition for writ of prohibition. On the same date, the District Court filed its opinion dismissing the petition for writ of certiorari filed by Biscayne and denying Biscayne the relief it sought. These are the decisions the Petitioner and Cross-Petitioner seek to have reviewed by this Court.
The first question to be determined is whether the two decisions of the District Court may be reviewed by a petition for certiorari filed by Flagler and a cross-petition filed by Biscayne. Hollywood asserts that a single petition for certiorari seeking review of two separate decisions of the District Court is not permitted.
The same parties were involved in State ex rel. West Flagler Associates, Ltd. v. Board of Business Regulation et al., Supra, as in Biscayne Kennel Club, Inc. v. Board of Business Regulation, Supra, the same issues were raised in each case and the same ultimate relief sought even though by different remedies. While the District Court in State ex rel. West Flagler Associates, Ltd. denied the relief sought by Flagler on the basis that mandamus would not lie to compel the exercise of a discretionary function and prohibition would not issue because of the completion of the act sought to be prohibited, the District Court clearly treated both causes together, as stated by the District Court in Biscayne Kennel Club, Inc.:
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