Supreme Court of Florida ____________
No. SC13-968 ____________
LICENSE ACQUISITIONS, LLC, et al., Appellants,
vs.
DEBARY REAL ESTATE HOLDINGS, LLC, et al., Appellees.
____________
No. SC13-1028 ____________
FLORIDA DEPARTMENT OF BUSINESS & PROFESSIONAL REGULATION, et al., Appellants,
[November 26, 2014] CORRECTED OPINION
LABARGA, C.J.
This case is before the Court on appeal from a decision of the First District
Court of Appeal, Debary Real Estate Holdings, LLC v. State, Department of Business & Professional Regulation, Division of Pari-Mutuel Wagering, 112 So.
3d 157 (Fla. 1st DCA 2013), which held section 550.054(14)(a), Florida Statutes
(2010), to be an invalid special law. This Court has jurisdiction of the appeal
under article V, section 3(b)(1) of the Florida Constitution. For the following
reasons, we reverse the First District and hold that section 550.054(14)(a) is a valid
general law.
FACTS
Appellants, the Department of Business and Professional Regulation,
Division of Pari-Mutuel Wagering (DBPR), License Acquisitions, LLC, and West
Volusia Racing, Inc., f/k/a Volusia Jai-Alai, Inc., appeal the First District’s per
curiam decision declaring section 550.054(14)(a) to be invalid as a special law
enacted without either providing advance notice of intent to enact the law or
conditioning the law’s effectiveness upon a referendum of the electors of the areas
affected in violation of article III, section 10, of the Florida Constitution. Based on
this ruling, the district court concluded that the trial court should have granted the
appellees’ motion for summary judgment. Debary, 112 So. 3d at 160.
Effective July 1, 2010, section 550.054(14) provides as follows:
(14)(a) Any holder of a permit to conduct jai alai may apply to the division [of pari-mutuel wagering] to convert such permit to a permit to conduct greyhound racing in lieu of jai alai if: 1. Such permit is located in a county in which the division has issued only two pari-mutuel permits pursuant to this section;
-2- 2. Such permit was not previously converted from any other class of permit; and 3. The holder of the permit has not conducted jai alai games during a period of 10 years immediately preceding his or her application for conversion under this subsection. (b) The division, upon application from the holder of a jai alai permit meeting all conditions of this section, shall convert the permit and shall issue to the permitholder a permit to conduct greyhound racing. A permitholder of a permit converted under this section shall be required to apply for and conduct a full schedule of live racing each fiscal year to be eligible for any tax credit provided by this chapter. The holder of a permit converted pursuant to this subsection or any holder of a permit to conduct greyhound racing located in a county in which it is the only permit issued pursuant to this section who operates at a leased facility pursuant to s. 550.475 may move the location for which the permit has been issued to another location within a 30-mile radius of the location fixed in the permit issued in that county, provided the move does not cross the county boundary and such location is approved under the zoning regulations of the county or municipality in which the permit is located, and upon such relocation may use the permit for the conduct of pari-mutuel wagering and the operation of a cardroom. The provisions of s. 550.6305(9)(d) and (f) shall apply to any permit converted under this subsection and shall continue to apply to any permit which was previously included under and subject to such provisions before a conversion pursuant to this section occurred.
§ 550.054(14), Florida Statutes (2010).
West Volusia Racing, Inc. (West Volusia Racing), and License Acquisitions,
LLC (License Acquisitions), applied for the conversion of their jai alai permits
under section 550.054(14)(a) on the day section 550.054 became effective.
Approximately three weeks later, the DBPR granted the applications. Shortly
thereafter, Debary Real Estate Holdings, LLC (Debary), instituted a declaratory
judgment action alleging in pertinent part that section 550.054(14) is an
-3- unconstitutional special law—a law designed to operate upon particular persons or
things, or one that purports to operate upon classified persons or things when
classification is not permissible or the classification adopted is illegal—enacted
without notice or conditioning the law’s effectiveness upon a referendum. The
appellants argued that the statute is a general law—a law that operates uniformly
within a permissible classification and is not subject to the notice or referendum
requirements of article III, section 10, of the Florida Constitution. Specifically,
Debary alleged that section 550.054(14)(a)1. was only applicable to two jai alai
permits and that the classification adopted was not rationally related to the purpose
of the statute because the statute would never be capable of application to
additional parties. Therefore, according to Debary, the classification adopted was
illegal. Debary subsequently amended its complaint to add an additional plaintiff.
The appellees then filed a motion for summary judgment supporting their
contention that the statute was a special law with the following facts. At the time
of the statute’s enactment, there were twenty-one total section 550.054 permits
existing in nine counties in Florida, eleven of which were jai alai permits. West
Volusia Racing and License Acquisitions held jai alai permits that were eligible for
conversion at the time of the statute’s enactment because the permits were dormant
for ten years and were located in counties where the DBPR had issued exactly two
section 550.054 permits, which include permits for greyhound racing, jai alai,
-4- thoroughbred horse racing, and harness horse racing. According to the appellees,
no other permits were eligible for conversion at the time of the statute’s enactment
and no other permits would ever be eligible for conversion. As a result, the
appellees argued at the trial court level, to the First District, and here on appeal that
two permits met all the criteria set forth in section 550.054(14)(a) at the time the
statute was enacted, and that no reasonable possibility exists that any other permits
will ever qualify for conversion absent a change in the law due to the restriction in
subsection (14)(a)1. Thus, the appellees contended that the statute was invalid as a
special law enacted under the guise of a general law. The trial court denied the
appellees’ motion for summary judgment.
The appellees then sought leave to amend their first amended complaint,
which was granted.1 Thereafter, License Acquisitions moved for summary
judgment regarding the allegation that section 550.054(14)(a) was an
1. In the second amended complaint, the appellees requested: (1) the issuance of a writ of quo warranto directed to the DBPR because it lacked authority under section 550.054(14)(a) to convert the pari-mutuel permits held by License Acquisitions and West Volusia Racing; (2) the issuance of a writ of quo warranto directed to West Volusia Racing to prevent it from exercising any rights or privileges under the greyhound permit; (3) the issuance of a writ of quo warranto directed to License Acquisitions to prevent it from exercising any rights under the greyhound permit; (4) the issuance of a declaration that License Acquisitions did not qualify for conversion and the order granting the conversion application is either void or voidable; (5) the issuance of a declaration that West Volusia Racing did not qualify for conversion and the order granting the conversion application is either void or voidable; and (6) the issuance of a declaration that section 550.054(14)(a) is an unconstitutional special law.
-5- unconstitutional special law, arguing that the statute was a general law because
sections 550.054(14)(a) and (b), when read together, created a classification
rationally related to the purpose of the statute because the statute would be capable
of application to additional parties. The trial court granted License Acquisitions’
motion for summary judgment.
After the appellees filed another amended complaint, which no longer
alleged unconstitutionality of the statute,2 the court determined that it lacked
subject matter jurisdiction, but noted that the appellees could seek relief under
chapter 120, Florida Statutes. The appellees timely appealed the final judgment
entered in favor of the appellants.
First District’s Decision
On appeal, the First District held that the trial court erred in denying the
appellees’ motion for summary judgment and instructed the trial court to enter
summary judgment in favor of the appellees.
The First District began its analysis by discussing the appropriate standards
for determining whether a law is special or general. The court observed that a law
is general when it operates on the basis of a classification system if the class
affected or regulated is potentially applicable to people or entities in the future, and
2. The final amended complaint did allege that the statute was an unconstitutional special law, but only did so for preservation purposes.
-6- there is a reasonable basis for the classification when the purpose of the legislation
and the subject of the regulation are considered. Debary, 112 So. 3d at 163-64
(citing Biscayne Kennel Club, Inc. v. Florida State Racing Comm’n, 165 So. 2d
762, 763-64 (Fla. 1964)). Further, the court noted that whether the class is
potentially open is the dispositive fact in determining whether a reasonable
relationship exists between the classification in pari-mutuel legislation and the
subject of the statute. Id. at 164 (citing Dep’t of Bus. Regulation v. Classic Mile,
541 So. 2d 1155, 1158 n.4 (Fla. 1989)). Finally, the court stated that the standard
for determining the openness of the class is whether there is a reasonable
possibility that others will join the class in the future. Id.
Turning to the appellants’ arguments, the First District rejected the argument
that subsections (a) and (b) of section 550.054(14), read together, were the relevant
classification for determining whether the law was a special or general law. Id. at
165. The First District noted that subsections (a) and (b) provided two distinct
benefits and that it was legally possible for a jai alai permit holder to take
advantage of subsection (a) while being restricted from obtaining the benefits of
subsection (b). Further, the First District reasoned that a closed class could then
always be paired with an open class to steer clear of constitutional challenges.
This determination was not challenged here on appeal.
-7- The First District then discussed the meanings of “only” and “has issued” as
used in section 550.054(14)(a)1. The court considered the plain language of the
statute, determining that the use of the word “only” required exclusion of any
alternatives other than the word it modifies, which was “two” in this case. Id. at
166. Regarding “has issued,” the court found that the literal meaning of the
present perfect verb tense used by the Legislature requires the DBPR to determine,
at the present time, how many permits have previously been issued in a given
county. Id. Thus, the court determined that the DBPR’s inquiry ended with the
answer to the question of how many permits have historically been issued. Id.
Applying the law to the facts, the First District found that the law was so specific
that the Legislature essentially described specific counties as the ones where jai
alai permits may be converted to greyhound permits. Accordingly, the court held
that the statute was an unconstitutional special law because there was no
reasonable possibility that any other permits would join the class. Id.
On appeal to this Court, the appellants contend that section 550.054(14)(a) is
a valid general law, arguing that the First District declared the statute invalid
because it misinterpreted the words “has issued” and “only” in section
550.054(14)(a)1. According to the appellants, “has issued” is not intended to mean
that every permit ever issued is considered, but only those that have not been
revoked or merged with another permit holder in the same county. Regarding
-8- “only,” the appellants contend that it means “no more than.” According to these
definitions, the statute is a valid general law because there is a reasonable
possibility that it could apply to ten of the eleven jai alai permits in the state. Thus,
the appellants contend that the First District erred by not adopting this
construction. For the following reasons, we hold that the statute is a valid general
law and reverse the First District’s decision holding the statute to be
unconstitutional.
ANALYSIS
Special Law v. General Law
“A law that operates universally throughout the state, uniformly upon
subjects as they may exist throughout the state, or uniformly within a permissible
classification is a general law.” Classic Mile, Inc., 541 So. 2d at 1157 (citing State
ex rel. Landis v. Harris, 163 So. 237 (Fla. 1934)). A special law is one designed to
operate upon particular persons or things, or one that purports to operate upon
classified persons or things when classification is not permissible or the
classification adopted is illegal; a local law is one relating to, or designed to
operate only in, a specifically indicated part of the State, or one that purports to
operate within a classified territory when classification is not permissible or the
classification is illegal. Id. Article III, section 10, of the Florida Constitution
prohibits the Legislature from passing a special law without either providing
-9- advance notice of intent to enact the law or conditioning the law’s effectiveness
upon a referendum of the electors of the areas affected. A special law, however, is
not converted into a general law by the Legislature’s treating it and passing it as a
general law. Id. at 1157-58 (citing Anderson v. Bd. of Pub. Instruction, 136 So.
334, 337 (Fla. 1931)).
A statutory classification scheme must bear a reasonable relationship to the
purpose of the statute in order for the statute to constitute a valid general law. Id.
at 1157 (citing West Flagler Kennel Club, Inc. v. Fla. State Racing Comm’n, 153
So. 2d 5 (Fla. 1963)). Statutes that employ arbitrary classification schemes are not
valid as general laws. Id. A statute is invalid if “ ‘the descriptive technique is
employed merely for identification rather than classification.’ ” Id. at 1159
(quoting West Flagler, 153 So. 2d at 8). Ultimately, the criterion that determines if
a reasonable relationship exists between the classification adopted and the purpose
of the statute is whether the classification is potentially open to additional parties.
Id. at 1158-59 (quoting Dep’t of Legal Affairs v. Sanford-Orlando Kennel Club,
Inc., 434 So. 2d 879, 882 (Fla. 1983)); see also Ocala Breeders’ Sales Co., Inc. v.
Fla. Gaming Ctrs., Inc., 731 So. 2d 21, 25 (Fla. 1st DCA 1999) (“If it is possible in
the future for others to meet the criteria set forth in the statute, then it is a general
law and not a special law.”). A classification scheme is not considered closed
“merely because it is unlikely that it will include anyone else.” Fla. Dep’t of Bus.
- 10 - & Prof’l Regulation v. Gulfstream Park Racing Ass’n, Inc., 967 So. 2d 802, 808-09
(Fla. 2007). However, a classification scheme is not considered open “merely
because there is a theoretical possibility that some day it might include someone
else. That approach would undermine the constitutional requirements for the
adoption of special laws. . . . [T]he proper standard is whether there is a
reasonable possibility that the class will include others.” Id. at 809.
The parties do not dispute that the Legislature did not provide notice of its
intent to enact the statute or condition its effectiveness on a referendum of the
electors of the areas affected. Thus, the issue on appeal to this Court is whether
section 550.054(14)(a) is unconstitutional as a special law passed under the guise
of a general law. The question of whether a law is a special or general law is a
legal question subject to de novo review. Gulfstream Park Racing, 967 So. 2d at
806 (citing Schrader v. Fla. Keys Aqueduct Auth., 840 So. 2d 1050, 1055 (Fla.
2003)); see also Scott v. Williams, 107 So. 3d 379, 384 (Fla. 2013) (noting that the
determination of whether a statute is constitutional is a pure question of law which
is reviewed de novo). “Although our review is de novo, statutes come clothed with
a presumption of constitutionality and must be construed whenever possible to
effect a constitutional outcome.” Lewis v. Leon Cnty., 73 So. 3d 151, 153 (Fla.
2011) (citing Fla. Dep’t of Revenue v. City of Gainesville, 918 So. 2d 250, 256
(Fla. 2005)). “ ‘To overcome the presumption, the invalidity must appear beyond
- 11 - reasonable doubt, for it must be assumed the [L]egislature intended to enact a valid
law.’ ” Id. (quoting Franklin v. State, 887 So. 2d 1063, 1073 (Fla. 2004)).
The parties herein are in agreement that the statute when enacted and at the
time of the trial court proceedings only applied to License Acquisitions and West
Volusia Racing. The basis of their divergence—rooted in their disagreement
regarding the definitions of “has issued” and “only” as they appear in section
550.054(14)(a)1.—is whether there is a reasonable possibility that the class is open
to additional parties. Section 550.054 provides:
(14)(a) Any holder of a permit to conduct jai alai may apply to the division to convert such permit to a permit to conduct greyhound racing in lieu of jai alai if: 1. Such permit is located in a county in which the division has issued only two pari-mutuel permits pursuant to this section;
§ 550.054 (14)(a)1., Fla. Stat. (2010). According to the appellants, if “only” is
construed to mean “not more than,” and “has issued” is not interpreted to mean
“has ever issued,” then the class is open to others pursuant to a future change in
factual circumstances. The appellees, on the other hand, contend that the First
District correctly determined that the classification scheme is closed because
“only” means “precisely,” and “has issued” refers to the number of permits the
DBPR has historically issued. Thus, according to the appellees, section
550.054(14)(a) creates a classification scheme that is closed and will only ever
apply to License Acquisitions and West Volusia Racing. Accordingly, whether
- 12 - section 550.054(14)(a) is a valid general law or an invalid special law is dependent
on the meaning of “only” and “has issued.”
Interpretations of “Only” and “Has Issued”
Here, the appellees argue that the statute’s plain language simply merits literal
effect, whereas the appellants argue that the plain language is open to alternative
interpretations, which requires the Court’s application of principles of statutory
construction. Legislative intent controls construction of statutes in Florida.
Florida Dept. of Bus. & Prof’l Regulation, Div. of Pari-Mutuel Wagering v. Inv.
Corp. of Palm Beach, 747 So. 2d 374, 382 (Fla. 1999). To determine legislative
intent, the courts look primarily to the language of the statute and its plain
meaning. Id. (citing St. Petersburg Bank & Trust Co. v. Hamm, 414 So. 2d 1071,
1073 (Fla. 1982)); see also Holly v. Auld, 450 So. 2d 217, 219 (Fla. 1984);
Sanford-Orlando Kennel Club, 434 So. 2d at 882; Carson v. Miller, 370 So. 2d 10,
11 (Fla. 1979). “ ‘[W]hen the language of the statute is clear and unambiguous and
conveys a clear and definite meaning, there is no occasion for resorting to the rules
of statutory interpretation and construction; the statute must be given its plain and
obvious meaning.’ ” Inv. Corp. of Palm Beach, 747 So. 2d at 382 (quoting Holly,
450 So. 2d at 219). However, this Court will not give a statute a literal
interpretation if such an interpretation would result in “an unreasonable or
ridiculous conclusion.” Id. at 383 (quoting Perkins v. State, 682 So. 2d 1083, 1085
- 13 - (Fla. 1996)). The Legislature did not define “only” and “has issued” in chapter
550. Thus, it is appropriate to refer to dictionary definitions in order to ascertain
the plain meaning of the statutory provisions at issue. Greenfield v. Daniels, 51
So. 3d 421, 426 (Fla. 2010) (quoting Sch. Bd. of Palm Beach Cnty. v. Survivors
Charter Sch., Inc., 3 So. 3d 1220, 1233 (Fla. 2009)).
The word “has” is defined in Merriam-Webster’s Collegiate Dictionary 571
(11th ed. 2005) as the third-person singular of have, which is defined as “to stand in
a certain relationship to.” “Issued” is defined as “to put forth or distribute.” Id. at
665. As the First District noted, the plain and literal meaning of the present perfect
verb tense the Legislature used here refers to the number of permits that have been
issued in a given county at the time the DBPR considers a permit holder’s
application to convert. Debary, 112 So. 3d at 166. Nothing from this language
suggests that any other fact beyond whether a permit has been issued is considered
in determining whether an applicant for permit conversion has met the statutory
requirements.
The appellants note, however, that such an interpretation of “has issued”
would result in the DBPR considering all permits that have ever been issued even
if an issued permit has been revoked, abandoned, or consolidated with another
permit. Specifically, appellants argue that the total number of permits issued in a
given county could be reduced in the future by reduction of permits in those
- 14 - counties by either revocation pursuant to sections 550.0251(10), 550.054(9)(b),
550.175, and 550.1815, Florida Statutes, or by merger (holder of one permit within
the same county acquires another permit and consolidates or abandons). Thus,
according to the appellants, such a construction is not in accord with legislative
intent.
Although legislative intent must be determined primarily from the language
of the statute, see Rollins v. Pizzarelli, 761 So. 2d 294, 297 (Fla. 2000), this Court
will not give a statute a literal interpretation if such an interpretation would result
in an unreasonable conclusion. Inv. Corp. of Palm Beach, 747 So. 2d at 383. This
Court has noted in the past that “Florida has a legitimate pecuniary interest in
racing because of the substantial revenue it receives from pari-mutuel betting. . . .”
Sanford-Orlando Kennel Club, 434 So. 2d at 881-82. Further, this Court has
previously observed that “it is the public policy of this state to limit the distance
within which additional establishments of like character may be licensed for
operation” to avoid over-competition. See Rodriguez v. Jones, 64 So. 2d 278, 279
(Fla. 1953). A permit previously issued by the DBPR that no longer exists either
because it has been revoked, abandoned, or merged with another permit in the
same geographic area does not create additional revenue for the state and does not
result in over-competition. Thus, in the context of the pari-mutuel wagering
industry, interpreting “has issued” to require the DBPR to consider permits that no
- 15 - longer exist, and no longer generate tax revenue for the state, would be an
unreasonable conclusion. We now turn to the possible interpretations of “only.”
The appellees argue that “only,” when used as an adjective, is defined as
“alone in a class or category,” and “as a single fact or instance and nothing more or
different” in Merriam-Webster’s Collegiate Dictionary. As noted by the First
District, Black’s Law Dictionary in 1979 defined “only” to mean “[s]olely; merely;
for no other purpose; at no other time; in no otherwise; alone; of or by itself;
without anything more; exclusive; [or] nothing else or more.” Black’s Law
Dictionary 982 (5th ed. 1979). Thus, according to the authorities listed above, the
definition of “only” indicates that the statutory condition in section 550.054 of
“only two permits” means “precisely two permits.”
An alternate definition of “only,” however, demonstrates that the
Legislature’s use of “only” is ambiguous and, therefore, subject to statutory
construction. Although “only” can be defined to mean solely or merely, other
dictionaries and thesauruses equate “only” to “nothing more than” or some
approximate variation when “only” is used as an adverb. See American Heritage
Roget’s Thesaurus 554 (2013) (“nothing more than”); Oxford American Dictionary
& Thesaurus (2d ed. 2009) (“no more than”); and The Merriam-Webster Thesaurus
(2005) (“nothing more than”). Further, the definition of “only” quoted in the First
District’s opinion contains “without anything more,” which can mean “no more
- 16 - than.” Indeed, references to certain uses of “only” in other statutory provisions
suggest that the word has been used by the Legislature to indicate a maximum
amount.
For instance, section 310.071(3), Florida Statutes (2010), provides that a
deputy pilot’s certificate, valid for two years, may be renewed “only two
times. . . .” This language suggests that a deputy pilot may renew a license less
than two times, but cannot exceed the limit of two renewals. Section
458.347(7)(b)3., Florida Statutes (2010), which applies to physician assistant
licensure, provides that the examination any person desiring to be licensed as a
physician assistant must take “shall be administered by the department only five
times.” Once again, the Legislature’s use of the word “only” appears to be
intended to operate as a maximum rather than require an applicant to take the same
examination five times. Section 561.422, Florida Statutes (2010), provides that a
permit may be issued authorizing a bona fide nonprofit civic organization to sell
alcoholic beverages for consumption on the premises and that an organization may
be issued “only three such permits per calendar year.” The Legislature’s use of
“only” here also suggests that the number three is a maximum rather than a
requirement that civic organizations use three permits every year. Section
597.010(18)(b)4., Florida Statutes (2010), provides that approval to harvest
shellfish by dredge from privately held shellfish leases or grants in Apalachicola
- 17 - Bay shall include, among many other conditions, the condition that “[o]nly two
dredges or scrapes per lease or grant may be possessed or operated at any time.”
This provision also suggests that “only” refers to a maximum rather than a
requirement that two dredges be used at a time. Finally, section 641.65(3)(b),
Florida Statutes (2010), provides that members of a district managed-care
ombudsman committee “may serve only two consecutive terms,” which creates a
maximum amount of terms.
As demonstrated above, “only” as used in section 550.054(14)(a)1. is
capable of more than one construction. Thus, a level of ambiguity exists in the
statute. See Forsythe v. Longboat Key Beach Erosion Control Dist., 604 So. 2d
452, 455 (Fla. 1992) (“Ambiguity suggests that reasonable persons can find
different meanings in the same language.”). As a result, the statute’s meaning is
subject to judicial construction. Gulfstream Park Racing Ass’n, Inc. v. Tampa Bay
Downs, Inc., 948 So. 2d 599, 606 (Fla. 2006) (citing Blanton v. City of Pinellas
Park, 887 So. 2d 1224, 1230 (Fla. 2004)).
The Court is obligated to accord legislative acts a presumption of
constitutionality and to construe challenged legislation to effect a constitutional
outcome whenever reasonably possible. See, e.g., Scott, 107 So. 3d at 384; State
v. Adkins, 96 So. 3d 412, 416-17 (Fla. 2012); Crist v. Fla. Ass’n of Criminal Def.
Lawyers, Inc., 978 So. 2d 134, 139 (Fla. 2008); Bush v. Holmes, 919 So. 2d 392,
- 18 - 405 (Fla. 2006); Fla. Dep’t of Revenue v. Howard, 916 So. 2d 640, 642 (Fla.
2005). “[E]ven where the statute is reasonably susceptible of two interpretations,
one of which would render it invalid and the other valid, we must adopt the
constitutional construction.” State v. Lick, 390 So. 2d 52, 53 (Fla. 1980); see also
Dep’t of Ins. v. Se. Volusia Hosp. Dist., 438 So. 2d 815, 820 (Fla. 1983); Miami
Dolphins, Ltd. v. Metro. Dade Cnty., 394 So. 2d 981, 988 (Fla. 1981) (“Given that
an interpretation upholding the constitutionality of the act is available to this Court,
it must adopt that construction.”); Corn v. State, 332 So. 2d 4, 8 (Fla. 1976)
(holding that the Court has a duty “to adopt a reasonable interpretation of a statute
which removes it farthest from constitutional infirmity”); Overstreet v. Blum, 227
So. 2d 197, 199 (Fla. 1969) (citing Redwing Carriers, Inc. v. Mason, 177 So. 2d
465, 467 (Fla. 1965)). Thus, where terms in a statute are ambiguous and the statute
“may reasonably be construed in more than one manner, this Court is obligated to
adopt the construction that comports with the dictates of the Constitution.”
Vildibill v. Johnson, 492 So. 2d 1047, 1050 (Fla. 1986). In that circumstance, we
will adopt the construction that will effect a constitutional outcome so long as it is
a fair construction of the statute consistent with legislative intent. See State v.
Globe Commc’ns Corp., 648 So. 2d 110, 113 (Fla. 1994).
- 19 - As discussed below, the First District’s interpretation renders the statute an
unconstitutional special law whereas the appellants’ proposed interpretation
renders the statute a valid general law.
First District’s Interpretations Render the Statute Unconstitutional
Pursuant to the First District’s interpretations of “has issued” and “only,”
and review of the record, only two counties had permit holders with the ability to
convert to a greyhound permit at the time of the statute’s enactment. Indeed,
License Acquisitions and West Volusia Racing, located in Palm Beach County and
Volusia County, respectively, were the only two jai alai permit holders, out of
eleven in the state, to apply for conversion of their permits to permits for
greyhound racing. Further, evidence in the record establishes that no other
counties have a jai alai permit holder who can convert the permit under the statute.
For instance, Gadsden County is ineligible due to a previous conversion that
disqualifies the permit holder. See § 550.054(14)(a)2. (“Such permit was not
previously converted from any other class of permit. . . .”). St. Lucie County,
Hamilton County, and two counties that currently do not have a single pari-mutuel
wagering permit under section 550.054 are also ineligible due to the mileage buffer
requirement of section 550.054(2), which makes it legally impossible to add a
second section 550.054 pari-mutuel permit. See § 550.054(2) (“In addition, an
application may not be considered, nor may a permit be issued by the division or
- 20 - be voted upon in any county, to conduct horse races, harness horse races, or dog
races at a location within 100 miles of an existing pari-mutuel facility, or for jai
alai within 50 miles of an existing pari-mutuel facility. . . .”); § 550.054(14)(a)1.
(“Such permit is located in a county in which the division has issued only two pari-
mutuel permits pursuant to this section.”). Thus, pursuant to the First District’s
interpretations, the class is closed absent a change in the law. Accordingly, based
upon the First District’s interpretation of “has issued” and “only,” the classification
adopted does not bear a reasonable relationship with the purpose of the statute,3
and the statute is an invalid special law. Under the available alternative
interpretations, however, the statute is rendered a valid general law.
Alternative Interpretations Render the Statute a Valid General Law
The appellants claim that adoption of their suggested interpretations would
result in a class open for conversion to all of the remaining permits except one—
thus a total of ten of the eleven existing permits at the time of the statute’s
enactment—without a change in the law. Indeed, review of the record
demonstrates that Hillsborough County had three total section 550.054 permits,
one of which was a dormant jai alai permit; Gadsden County had a dormant jai alai
3. It is difficult to formulate a reasonable rationale to limit conversion of permits to permit holders in counties that have exactly two section 550.054 permits, and prevent permit conversion to permit holders from counties that have zero additional competing section 550.054 permits.
- 21 - permit, but it previously converted and could never be eligible; Miami-Dade
County and Broward County both had two active jai alai permits, and five total
section 550.054 permits; St. Lucie County had one active jai alai permit and no
other section 550.054 permits; Hamilton County had one active jai alai permit and
no other section 550.054 permits; Marion County had one active jai alai permit and
no other section 550.054 permits4; and two other counties, possibly Bay County
and Dixie County, did not presently have any 550.054 permits and could legally
acquire a permit without violating the mileage restrictions in section 550.054(2)
noted above. Thus, only one current jai alai permit holder would be ineligible, and
two counties without a present jai alai permit holder could conceivably join the
class. Accordingly, the class is open to additional parties pursuant to this
construction of the statute, which renders the statute a valid general law. See
Classic Mile, 541 So. 2d at 1157 (“A statutory classification scheme must bear a
reasonable relationship to the purpose of the statute in order for the statute to
constitute a valid general law.”); Sanford-Orlando Kennel Club, 434 So. 2d at 882
(reasoning that the controlling point in evaluating the statute’s constitutionality
was the openness of the class).
4. The record shows that Marion County has one jai alai permit and a “limited intertrack wagering license.” As the appellees correctly note and the appellants do not dispute, the record does not specify that this license is not a section 550.054 permit, but it is, in fact, a license granted pursuant to section 550.6308. Thus, Marion County only has one section 550.054 permit.
- 22 - Indeed, application of every enumerated condition for conversion set forth in
section 550.054(14)(a) demonstrates that the conditions are reasonably related to
the purpose of the statute. Section 550.054 is titled “Application for permit to
conduct pari-mutuel wagering.” Pari-mutuel wagering is a heavily regulated
industry in Florida. See Sanford-Orlando Kennel Club, 434 So. 2d at 881
(“Florida has a legitimate pecuniary interest in racing because of the substantial
revenue it receives from pari-mutuel betting. . . . [And] because of the nature of
the enterprise, authorized gambling, this state may exercise greater control and use
the police power in a more arbitrary manner.”). This Court has also stated that
“[i]n the regulation of such establishments or ‘enterprises,’ it is the public policy of
this state to limit the distance within which additional establishments of like
character may be licensed for operation.” Rodriguez, 64 So. 2d at 279. Thus,
given this context—the Legislature has a pecuniary interest in pari-mutuel
wagering and historically limits the distance between establishments—the purpose
of the statute is to guide the DBPR’s discretion in considering applications for
permits with the aim of maximizing revenue generation and limiting competition
within certain geographical areas.5
5. Review of other provisions in this section demonstrates the Legislature’s interest in generating revenue and limiting geographic competition. For example, section 550.054(2) establishes a mileage buffer, section 550.054(3)(h) requires applicants to provide a business plan for the first year of operation, section 550.054(10) allows the DBPR to revoke a permit if construction of the facilities is
- 23 - As noted previously, section 550.054(14)(a) provides: (14)(a) Any holder of a permit to conduct jai alai may apply to the division to convert such permit to a permit to conduct greyhound racing in lieu of jai alai if: 1. Such permit is located in a county in which the division has issued only two pari-mutuel permits pursuant to this section; 2. Such permit was not previously converted from any other class of permit; and 3. The holder of the permit has not conducted jai alai games during a period of 10 years immediately preceding his or her application for conversion under this subsection.
The restriction regarding the number of permits in a county is consistent with the
Legislature’s policy of limiting the number of similar permits, section 550.054
permits in this case, within a given area. The Legislature has likely determined
that fewer competing pari-mutuel wagering operations within a geographic area
would avoid jeopardizing a pari-mutuel wagering operation’s economic well-
being. The restriction prohibiting previously converted permits from converting to
greyhound racing could discourage permit holders seeking short-term success from
constantly converting their permits; the Legislature could have reasonably
determined that a more consistent business model would generate more revenues
than a constantly evolving one. For instance, greyhound racing, thoroughbred
lagging, section 550.054(13)(a) restricts transfer of a thoroughbred racing permit or license if the transfer is intended to permit a licensee to change the horse racetrack’s location subject to enumerated exceptions, and section 550.054(14)(b) allows a holder of a converted jai alai permit, subject to further conditions, to move the location within a thirty-mile radius, which enables the permit holder to conduct pari-mutuel wagering and operate a cardroom.
- 24 - horse racing, and jai alai gaming would require different facilities, which could
require temporary closure of facilities amid applications for construction permits or
zoning permit conversions, investment in different operations, and training
expenses for employees. Further, the ten-year dormancy period could serve to
discourage or prevent successful jai alai frontons from shutting down operations to
convert to a permit that may be marginally more lucrative. Finally, it could
operate to prevent the complete eradication of all jai alai establishments, which
also prevents over-competition in greyhound racing and cardroom operations.
This Court has held that the law must be upheld unless the Legislature could
not have any reasonable ground for believing that there were public considerations
justifying the particular classification and distinction made. North Ridge Gen.
Hosp., Inc. v. City of Oakland Park, 374 So. 2d 461, 465 (Fla. 1979). Further, this
Court has held that “one who assails the classification has the burden of showing
that it is arbitrary and unreasonable.” Id. at 465. The appellees have not met this
burden. Thus, we hold that these interpretations render the statute a valid general
law.
This case, when considered in light of our precedent, supports our
conclusion that this statute is a valid general law pursuant to this construction of
the statute. In Sanford-Orlando Kennel Club, this Court considered whether a
statute that permitted the conversion of any harness racing track to dog racing was
- 25 - an unconstitutional special law. 434 So. 2d at 880-81. Pursuant to the statute, a
harness racing track could be converted to a dog racing track if that track earned a
certain amount of average daily income over a period of years and generated a
certain amount of tax revenue for the state. Id. at 880. Although the statute’s
classification scheme only applied to the two then-existing permits, the Court held
that the classification scheme was a general law. The Court noted that “[a] general
law operates uniformly, not because it operates upon every person in the state, but
because every person brought under the law is affected by it in a uniform fashion.
Uniformity of treatment within the class is not dependent upon the number of
persons in the class.” Id. at 881. Further, the Court reasoned that the controlling
point in evaluating the statute’s constitutionality was that “even though this class
did in fact apply to only one track, it is open and has the potential of applying to
other tracks.” Id. at 882.
In Biscayne Kennel Club, Inc. v. Fla. State Racing Comm’n, 165 So. 2d 762
(Fla. 1964), this Court considered the constitutionality of a statute that provided
“for the transfer, under certain conditions, of existing racing permits to allow
establishment of harness racing operations in counties which have by previous
referendum for two years approved the operation of race track pari-mutuel pools,
excluding those having more than one horse track permit or one with an average
daily pari-mutuel pool less than a specified minimum.” Id. at 763-64. The Court
- 26 - upheld the classification because a number of Florida counties could, by future
referendum, acquire racing establishments and have “not more than one horse track
with a daily pool above the minimum set.” Id. at 764.
Other cases from this Court holding a statute unconstitutional largely
involved classification schemes that were clearly applicable to only one individual,
entity, or geographic area. See, e.g., Gulfstream Park, 967 So. 2d at 809
(addressing a statute that prohibited thoroughbred permit holders from engaging in
intertrack wagering in “any area of the state where there are three or more
horserace permitholders within 25 miles of each other,” and holding that it was
unconstitutional because there was no reasonable possibility that these conditions
would ever exist in another part of the state); City of Miami v. McGrath, 824 So.
2d 143, 146, 151 (Fla. 2002) (addressing a statute which authorized only
municipalities with populations of more than 300,000 on a date certain to impose a
parking tax, and holding that the statute was a special law because its express terms
limited its application and excluded any other municipalities from joining the class
in the future); Classic Mile, 541 So. 2d at 1158-59 (declaring statute
unconstitutional because conditions only applied to Marion County, could never
apply to others, and the appellants made no attempt to demonstrate a reasonable
relationship between the classification and the subject of the statute); W. Flagler
Kennel Club, 153 So. 2d at 8 (holding the statute applicable only to Broward
- 27 - County and noting that the appellants failed to attempt to demonstrate a reasonable
relationship between the classification and the subject of the statute). It is also
noted that in Gulfstream Park, this Court held that “a statute that appears to apply
to one . . . area at the time of enactment may still be considered a general law if it
could be applied to other . . . areas in the future.” 967 So. 2d at 808. As discussed
above, although section 550.054(14)(a) applied to two permits at the time of
enactment, it could be applied to other permits in the future.
Finally, we also find that the alternative interpretations of “has issued” and
“only” represent a fair construction of the statute consistent with legislative intent.
As we noted previously, the Legislature has a pecuniary interest in this industry
because of the substantial revenue it generates and has historically avoided over-
competition of pari-mutuel wagering activities within a given geographic area.
When “only” is used as an adjective in this context, it does not serve a discernible
purpose—no articulated legislative policy would be served by requiring exactly
two section 550.054 permits as a condition of conversion. When “only” is used as
an adverb, however, it serves the grammatical purpose of indicating that the two-
permit condition is a maximum of two permits, which advances the legislative
policy of avoiding over-competition and maximizing revenues. Regarding “has
issued,” we also noted above that the First District’s interpretation would lead to
the unreasonable conclusion that the DBPR must consider permits that no longer
- 28 - exist and no longer generate revenue or provide competition in a given area.
Accordingly, we agree with the appellants’ interpretation of the statute because it is
a fair construction of the statute that is consistent with legislative intent and results
in a determination that the statute is a valid general law.
CONCLUSION
Based on the foregoing, we reverse the First District’s decision holding
section 550.054(14)(a) unconstitutional and direct the trial court to enter summary
judgment in favor of the appellants because we hold that section 550.054(14)(a) is
a valid general law in which the classification scheme reasonably relates to the
purpose of the statute.
It is so ordered.
PARIENTE, CANADY, POLSTON, and PERRY, JJ., concur. LEWIS, J., dissents. QUINCE, J., recused.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND IF FILED, DETERMINED.
An Appeal from the District Court of Appeal – Statutory or Constitutional Invalidity
First District - Case No. 1D12-1654
(Leon County)
- 29 - Barry Scott Richard of Greenberg Traurig, P.A., Tallahassee, Florida, on behalf of License Acquisitions, LLC; J. Riley Davis and Thomas A. Range of Akerman LLP, Tallahassee, Florida, on behalf of West Volusia Racing, Inc.; J. Layne Smith and Garnett Wayne Chisenhall, Jr., Tallahassee, Florida, on behalf of Department of Business and Professional Regulation,
for Appellants
David S. Romanik of David S. Romanik, P.A., Oxford, Florida,
for Appellees
- 30 -