IN THE SUPREME COURT OF FLORIDA

Transcription

1 IN THE SUPREME COURT OF FLORIDA WEST FLAGLER ASSOCIATES, LTD., Petitioner, L.T. Case No.: 1D /1D vs. FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION, DIVISION OF PARI-MUTUEL WAGERING and SOUTH FLORIDA RACING ASSOCIATION, LLC, Respondents. / PETITION FOR DISCRETIONARY REVIEW OF A DECISION OF THE DISTRICT COURT OF APPEAL OF FLORIDA, FIRST DISTRICT RESPONDENT S BRIEF ON JURISDICTION Andrew T. Lavin NAVON & LAVIN, P.A Stirling Road Suite B-100 Ft. Lauderdale, Florida Telephone: (954) Facsimile: (954) Raoul G. Cantero John-Paul Rodriguez WHITE & CASE LLP 200 South Biscayne Boulevard, Suite 4900 Miami, Florida Telephone: (305) Facsimile: (305) Attorneys for Respondent South Florida Racing Association, LLC MIAMI (2K)

2 TABLE OF CONTENTS Page TABLE OF AUTHORITIES... ii INTRODUCTION... 1 STATEMENT OF THE CASE AND FACTS... 1 Course of Proceedings Below... 3 SUMMARY OF ARGUMENT... 4 ARGUMENT... 4 I. The First DCA s Opinion Does Not Create Express and Direct Conflict... 4 A. No express and direct conflict exists... 5 B. Slot machines are not unconstitutional lotteries... 8 II. The First DCA Properly Construed the Slots Amendment and Amended Slots Statute... 9 CONCLUSION CERTIFICATE OF SERVICE CERTIFICATE OF COMPLIANCE APPENDIX A (RULING BELOW) MIAMI (2K) -i-

3 TABLE OF AUTHORITIES CASES A. R. Douglass v. McRainey, 137 So. 157 (Fla. 1931)... 6 Ansin v. Thurston, 101 So. 2d 808 (Fla. 1958)... 9 Bush v. Holmes, 919 So. 2d 392 (Fla. 2006)... 7 Chicago Title Ins. Co. v. Butler, 770 So. 2d 1210 (Fla. 2000)... 6 City of Jacksonville v. Florida First Nat l Bank of Jacksonville, 339 So. 2d 632 (Fla. 1976)... 5 Dade Cnty. School Bd. v. Radio Station WQBA, 731 So. 2d 638 (Fla. 1999)... 8 Golden Nugget Grp. v. Metro. Dade Cnty., 464 So. 2d 535 (Fla. 1985)... 9 Hardee v. State, 534 So. 2d 706 (Fla. 1988)... 5 Holly v. Auld, 450 So. 2d 217 (Fla. 1984)... 6 In re Advisory Op. Re Authorizes Miami-Dade and Broward Cnty. Voters to Approve Slot Machines in Parimutuel Facilities, 880 So. 2d 522 (Fla. 2004)... 8 Lewis v. Leon Cnty., 36 Fla. L. Weekly S525 (Fla. Sept. 22, 2011)... 6, 7 Nichols v. State, 177 So. 2d 467 (Fla. 1965)... 7 MIAMI (2K) -ii-

4 Reaves v. State, 485 So. 2d 829 (Fla. 1986)... 4, 5, 8 State ex rel. Jones v. Wiseheart, 245 So. 2d 849 (Fla. 1971)... 7 State ex rel. Lamar v. Jacksonville Terminal Co., 27 So. 225 (1900)... 7 Taylor v. Dorsey, 19 So. 2d 876 (Fla. 1944)... 7 STATUTES AND OTHER AUTHORITY Art. V, 3(b)(3), Fla. Const. (1980)... 4 Article X, 23, Fla. Const.... 1, 4, 6, 7 Fla. R. App. P (a)(2)(A)(iv) (1), Fla. Stat (4), Fla. Stat. (2011)... 2, 9 Chapter 551, Florida Statutes... 2 Ch , Laws of Florida... 2, 9 MIAMI (2K) -iii-

5 INTRODUCTION The First DCA upheld a statute authorizing certain eligible pari-mutuel facilities, including the Respondent, to operate slot machines. Petitioner and two other pari-mutuel facilities argued that a recent citizen s-initiative constitutional amendment authorizing certain pari-mutuel facilities in Miami-Dade and Broward counties to operate slot machines prohibited the Legislature from ever legalizing gambling anywhere else. Both the trial court and the First DCA rejected that argument, concluding that the constitutional amendment did not eliminate the Legislature s historical police power to regulate gambling; it limited only the Legislature s authority to prohibit slot machine gaming in certain facilities in the 1 two counties (slip. op. at 6). That conclusion is eminently correct, and does not conflict with any other appellate decision. This Court should decline review. STATEMENT OF THE CASE AND FACTS In 2004, Florida voters approved a ballot initiative adding Article X, section 23 of the Florida Constitution (the Slots Amendment ), which provides:... the governing bodies of Miami-Dade and Broward Counties each may hold a county-wide referendum in their respective counties on whether to authorize slot machines within existing, licensed parimutuel facilities (thoroughbred and harness racing, greyhound racing, and jai-alai) that have conducted live racing or games in that county during each of the last two calendar years before the effective date of this amendment. 1 Citations are to the First DCA s slip opinion, attached as Appendix A. MIAMI (2K) 1

6 (Slip op. at 3-4). In 2005, the Legislature enacted chapter 551, Florida Statutes to implement the Slots Amendment (the Slots Statute ) (id. at 4). Section (4), Florida Statutes (2005) defined eligible facility as: Any licensed pari-mutuel facility located in Miami-Dade County or Broward County existing at the time of adoption of s. 23, Art. X of the State Constitution that has conducted live racing or games during calendar years 2002 and 2003 and has been approved by a majority of voters in a countywide referendum to have slot machines.... (Id.). Under the Slots Statute s definition of eligible facility, only seven entities qualified to operate slot machines in Miami-Dade and Broward Counties (id. at 7). Voters approved slot machines in Broward and Miami-Dade Counties in 2005 and 2008, respectively (id. at 4). In 2009, the Legislature passed Chapter , Laws of Florida, which amended the Slots Statute s definition of eligible facility (the Amended Slots Statute ) to include:... any licensed pari-mutuel facility located within a county as defined in s , provided such facility has conducted live racing for 2 consecutive calendar years immediately preceding its application... or any licensed pari-mutuel facility in any other county in which a majority of voters have approved slot machines at such facilities in a countywide referendum held pursuant to a statutory or constitutional authorization after the effective date of this section in the respective county, provided such facility has conducted a full schedule of live racing for 2 consecutive calendar years immediately preceding its application.... (Id. at 4-5). The Amended Slots Statute took effect on July 1, 2010 (id. at 5). MIAMI (2K) 2

7 Course of Proceedings Below In June 2010, Petitioner West Flagler Associates, Ltd., along with Florida Gaming Centers, Inc., and Calder Race Course, Inc., filed two lawsuits against South Florida Racing and the Florida Department of Business and Professional Regulation seeking, among other things, a judgment declaring the Amended Slots Statute unconstitutional (slip op. at 5). The trial court consolidated the cases, and granted a motion to intervene filed by Florida Pinball and Amusement, Inc. (id.). The Plaintiffs moved for summary judgment, arguing (among other things) that the Amended Slots Statute was unconstitutional because the Slots Amendment implicitly limited the power of the Legislature to regulate slot machine gaming (id. at 5). South Florida Racing cross-moved for summary judgment, arguing that the express language of the Slots Amendment did not indicate an intention to limit the Legislature s inherent power to regulate gambling (id.). The trial court agreed and granted summary judgment in favor of the defendants (id.). On appeal, the First DCA unanimously affirmed (slip op. at 6-7). Noting that all statutes are presumed to be constitutional, and that the Legislature has broad discretion in regulating and controlling pari-mutuel wagering and gambling under its police powers[,] the court held that the only thing that Article X, section 23 limited was the Legislature s authority to prohibit slot machine gaming in certain facilities in [Miami-Dade and Broward] counties (slip op. at 6). The MIAMI (2K) 3

8 court further stated that Article X, section 23 provides no indication that Florida voters intended to forever prohibit the Legislature from exercising its authority to expand slot machine gaming beyond those facilities in Miami-Dade and Broward Counties.... [n]or is there any indication that Florida voters intended to grant the seven entities who met the criteria a constitutionally-protected monopoly.... (Id. at 7). Petitioner now seeks review of the First DCA s decision. 2 SUMMARY OF ARGUMENT No express and direct conflict exists in this case because the First DCA did not rely on the canons of construction or the lottery prohibition Petitioner cites. Nor did the First DCA announce a new rule of law or incorrectly apply the relevant standards. Finally, the First DCA s proper construction of the Slots Amendment and validation of the Amended Slots Statute does not merit review by this Court. ARGUMENT I. The First DCA s Opinion Does Not Create Express and Direct Conflict Conflict jurisdiction requires that a decision expressly and directly conflict with the decision of this Court or another district court of appeal. See Art. V, 3(b)(3), Fla. Const. (1980). For conflict to be express, it must appear within the four corners of the majority decision. Reaves v. State, 485 So. 2d 829, 830 (Fla. 1986). For it to be direct, the decision must either (1) announce a rule of law that 2 Calder Race Course, Inc. and Florida Gaming Centers, Inc. have also filed notices to invoke this Court s jurisdiction. See Calder Race Course, Inc. v. Florida Dep t of Bus. and Prof l Regulation, case no. SC ; Florida Gaming Ctrs., Inc. v. Florida Dep t of Bus. and Prof l Regulation, case no. SC MIAMI (2K) 4

9 conflicts with an expression of law from this Court or another district court of appeal, or (2) apply a rule of law to produce a different result in a case involving substantially the same controlling facts as a prior case. City of Jacksonville v. Florida First Nat l Bank of Jacksonville, 339 So. 2d 632, 633 (Fla. 1976) (England, J., concurring). Conflict jurisdiction is discretionary, so even if a conflict exists, this Court may decline review. Fla. R. App. P (a)(2)(A)(iv). A. No express and direct conflict exists Petitioner first argues that the First DCA s opinion creates express and direct conflict with constitutional standards that require courts to necessarily imply the prohibitive effect of a constitutional provision (br. at 4-7). 3 Petitioner cites several cases applying two related principles: (1) where the Constitution expressly provides the manner of doing a thing, it impliedly forbids its being done in a substantially different manner; and (2) expressio unius est exclusio ulterius the expression of one thing is the exclusion of another (br. at 5-7). Contrary to Petitioner s assertions, the First DCA s opinion does not expressly conflict with cases applying these principles. The First DCA correctly relied on the Slots Amendment s unambiguous language, which does not indicate 3 In discussing previously rejected gambling ballot initiatives, Petitioner cites the record on appeal (br. at 3-4). For purposes of determining a conflict, however, facts not in the DCA opinion itself are irrelevant. Hardee v. State, 534 So. 2d 706, 708 n* (Fla. 1988); see also Reaves, 485 So. 2d at 830 (Neither a dissenting opinion nor the record itself can be used to establish [conflict] jurisdiction. ) MIAMI (2K) 5

10 any intent to eliminate the Legislature s inherent power to regulate gambling and replace it with a monopoly on the operation of slot machines (slip op. at 7). See A. R. Douglass v. McRainey, 137 So. 157, 159 (Fla. 1931) ( The intention and meaning of the Legislature must primarily be determined from the language of the statute itself and not from conjectures aliunde. ). Petitioner s recitation of the history of gambling initiatives in Florida is irrelevant. The First DCA also did not announce a new rule of law or apply a rule of law to a case with substantially similar facts to produce an inconsistent result. It properly applied the required presumption of constitutionality to the Amended Slots Statute, and correctly interpreted the clear language of the Slots Amendment. See Chicago Title Ins. Co. v. Butler, 770 So. 2d 1210, 1214 (Fla. 2000) ( [A]ll laws are presumed constitutional... the burden rests on the party challenging the law to show that it is invalid. ); Lewis v. Leon Cnty., 36 Fla. L. Weekly S525, S526 (Fla. Sept. 22, 2011) (noting at if constitutional language is clear, unambiguous, and addresses the matter in issue, then it must be enforced as written ). Even Petitioner admits the trial court s proper application of the law when it states that the First DCA s decision creates conflict by placing exclusive reliance upon the language of Article X, 23 (br. at 4). Canons of construction are unnecessary, however, where the language of the constitutional provision is clear and unambiguous. See Holly v. Auld, 450 So. 2d 217, 219 (Fla. 1984) ( [W]hen MIAMI (2K) 6

11 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[.] ); Lewis, 36 Fla. L. Weekly at S525 ( When reviewing constitutional provisions, this Court follows principles parallel to those of statutory interpretation. ) (citations and quotations omitted). Even if the Slots Amendment were ambiguous, this Court often has warned that doctrines such as expressio unius ( the expression of one thing implies the exclusion of another ) should be sparingly used in construing the constitution[.] Taylor v. Dorsey, 19 So. 2d 876, 881 (Fla. 1944); see also State ex rel. Jones v. Wiseheart, 245 So. 2d 849, 854 (Fla. 1971) (finding no inconsistency between constitutional provisions regarding courts jurisdiction and a law expanding it); State ex rel. Lamar v. Jacksonville Terminal Co., 27 So. 225, 232 (1900) (warning that expressio unius is not to be applied indiscriminately to every case ); Nichols v. State, 177 So. 2d 467, (Fla. 1965) (warning that expressio unius should be applied with great caution ). Cf. Bush v. Holmes, 919 So. 2d 392, (Fla. 2006) (applying expressio unius because [u]nlike the constitutional provision at issue in Taylor, which had a narrow primary purpose, article IX, section 1(a) provides a comprehensive statement of the state s responsibilities regarding the education of its children ) (emphasis added). The First DCA s opinion is consistent with this Court s jurisprudence that expressio unius should MIAMI (2K) 7

12 not be applied unless the constitutional provision is ambiguous and it establishes a comprehensive scheme. Neither exception applies to the Slots Amendment. B. Slot machines are not unconstitutional lotteries Petitioner next argues, for the first time in these proceedings, that slot machines are constitutionally prohibited lotteries (br. at 7-10). This argument was not raised either in the trial court or in the First DCA. See Dade Cnty. School Bd. v. Radio Station WQBA, 731 So. 2d 638, 644 (Fla. 1999) ( Generally, if a claim is not raised in the trial court, it will not be considered on appeal. ). Petitioner s argument is meritless anyway. The First DCA did not rely on the lottery prohibition, and therefore any alleged conflict is not express. See Reaves, 485 So. 2d at 830. And when it reviewed the ballot summary for the Slots Amendment, this Court reaffirmed that slot machines are not lotteries. See In re Advisory Op. Re Authorizes Miami-Dade and Broward Cnty. Voters to Approve Slot Machines in Parimutuel Facilities, 880 So. 2d 522, (Fla. 2004) (finding that slot machines are not lotteries prohibited by the Constitution). Petitioner s argument that slot machines now constitute a lottery because the Legislature has authorized slot gaming all over the State, in potentially unlimited numbers (br. at 10) is baseless. 4 Far from authorizing slot machines all over the 4 In the trial court, Petitioner argued just the opposite that the Amended Slots Statute was an unconstitutional special law because its definition of eligible facility included only one county (R ). MIAMI (2K) 8

13 state, the Amended Slots Statute restricts the operation of slots to (1) counties as defined in section (1), Florida Statutes (under which only Miami-Dade, Monroe, and Hillsborough Counties potentially qualify, see Golden Nugget Grp. v. Metro. Dade Cnty., 464 So. 2d 535, 536 (Fla. 1985)); and (2) counties authorizing slots by referendum. See (4), Fla. Stat. (2011). Id. II. The First DCA Properly Construed the Slots Amendment and Amended Slots Statute Finally, Petitioner argues that review of the First DCA s decision is necessary because it construes a provision of the Florida Constitution and declares a state statute valid (br. at 10). This Court, however, should decline review because, as discussed above, the First DCA correctly applied the law, properly construed the Slots Amendment, and correctly upheld the Amended Slots Statute. This Court s involvement is unnecessary. Under Florida s constitutional system, the district courts of appeal are intended to be the final courts of review in the vast majority of circumstances. As stated in Ansin v. Thurston, 101 So. 2d 808, 810 (Fla. 1958): It was never intended that the district courts of appeal should be intermediate courts... [t]o fail to recognize that these are courts primarily of final appellate jurisdiction and to allow such courts to become intermediate courts of appeal would result in a condition far more detrimental to the general welfare and the speedy and efficient administration of justice than that which the system was designed to remedy. MIAMI (2K) 9

14 As it was created to do, the First DCA interpreted a Florida constitutional provision and concluded that a statute did not conflict with it. That decision does not conflict with any decision of another DCA or of this Court. Nor did the First DCA certify that the issue it reviewed concerned a question of great public importance. Therefore, although this Court has the discretion to review this case, further review is unnecessary. CONCLUSION For the reasons stated above, this Court should decline review. Respectfully submitted, WHITE & CASE LLP Andrew T. Lavin NAVON & LAVIN, P.A Stirling Road Suite B-100 Ft. Lauderdale, Florida Telephone: (954) Facsimile: (954) /s/ Raoul G. Cantero Raoul G. Cantero John-Paul Rodriguez WHITE & CASE LLP 200 South Biscayne Boulevard, Suite 4900 Miami, Florida Telephone: (305) Facsimile: (305) Attorneys for Respondent South Florida Racing Association, LLC MIAMI (2K) 10

15 CERTIFICATE OF SERVICE I certify that a copy of this brief was sent by U.S. mail on December 19, 2011 to counsel on the attached service list. By: /s/ Raoul G. Cantero Raoul G. Cantero CERTIFICATE OF COMPLIANCE I certify that this brief complies with the font requirement of Florida Rule of Appellate Procedure 9.210(a)(2) and is submitted in Times New Roman 14-point font. By: /s/ Raoul G. Cantero Raoul G. Cantero MIAMI (2K) 11

16 Service List David S. Romanik David S. Romanik, P.A. P. O. BOX 650 Oxford, FL Telephone: (954) Co-Counsel for Florida Pinball and Amusement Ass n, Inc. Joel S. Perwin Joel S. Perwin, P.A. 169 E. Flagler St., Suite 1422 Miami, FL Telephone: (305) Facsimile: (305) Co-Counsel for West Flagler Assoc., Inc. John M. Lockwood, Esq. Gunster, Yoakley & Stewart, P.a. 215 South Monroe Street, Suite 618 Tallahassee, FL Telephone: (850) Facsimile: (850) Co-Counsel for West Flagler Assoc., Inc. Marc W. Dunbar Pennington, Moore, Wilkinson, Bell & Dunbar, P.A. 215 S. Monroe St., Second FL Tallahassee, Florida Telephone: (850) Facsimile: (850) Co-Counsel for Florida Pinball and Amusement Ass n, Inc. Michael S. Olin Michael S. Olin, P.A. 169 E. Flagler Street, Suite 1224 Miami, FL Telephone: (305) Facsimile: (305) Co-Counsel for West Flagler Assoc., Inc. Garnett Chisenhall Dept. of Bus. & Prof. Regulation 1940 N. Monroe St. Tallahassee, Florida Telephone: (850) Facsimile: (850) Counsel for Florida Dept. of Bus. and Prof. Regulation MIAMI (2K) 12