         FIRST DISTRICT COURT OF APPEAL
                STATE OF FLORIDA
                 _____________________________

                         No. 1D18-4660
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FLORIDA THOROUGHBRED
BREEDERS’ ASSOCIATION, INC.,
d/b/a FLORIDA THOROUGHBRED
BREEDERS’ AND OWNERS’
ASSOCIATION,

    Appellant,

    v.

CALDER RACE COURSE, INC., and
FLORIDA DEPARTMENT OF
BUSINESS AND PROFESSIONAL
REGULATION, DIVISION OF PARI-
MUTUEL WAGERING,

    Appellees.

                 _____________________________

                         No. 1D18-4674
                 _____________________________

OCALA BREEDERS’ SALES CO.,
INC.,

    Appellant,

    v.

CALDER RACE COURSE, INC.,
FLORIDA DEPARTMENT OF
BUSINESS AND PROFESSIONAL
REGULATION, DIVISION OF PARI-
MUTUEL WAGERING, and
FLORIDA THOROUGHBRED
BREEDERS’ ASSOCIATION, INC.,
d/b/a FLORIDA THOROUGHBRED
BREEDERS’ AND OWNERS’
ASSOCIATION,

    Appellees.

                  _____________________________

On appeal from the Department of Business and Professional
Regulation, Division of Pari-Mutuel Wagering.
Robert Ehrhardt, Director.

                        September 25, 2019


WOLF, J.

     These appeals challenge a Final Order Granting a Declaratory
Statement requested by Calder Race Course Inc. (Calder) and
issued by The Florida Department of Business and Professional
Regulation, Division of Pari-Mutual Wagering (Division). The
declaratory statement determined in part that pursuant to section
551.102(4), Florida Statutes, Calder could discontinue the
operation of thoroughbred races and instead present a full
schedule of live jai alai performances in order to maintain its
“eligible facility” status to continue to conduct slot machine
operations. The declaratory statement also determined that
Calder was not required to conduct summer jai alai performances
in the state fiscal year proceeding its operation of slot machines.
We affirm as to all issues and specifically address one of
appellants’ challenges. We find the Division’s interpretations of
the constitutional amendment and statutes which would allow
Calder to present jai alai games in order to continue to conduct slot
machine operations are the most reasonable.




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                              FACTS

     In 2004, Florida voters approved a new constitutional
provision authorizing Miami-Dade and Broward Counties to hold
countywide referenda on whether to authorize slot machines
within existing licensed pari-mutuel facilities which had
conducted live racing or games in that county during 2002 and
2003. See art. X, § 23, Fla. Const. (2018). 1 On November 2, 2004,
Florida voters approved the “Slots Amendment.” Slot machines
were approved in Broward County in 2004 and in Miami-Dade
County in 2008.

     In 2005 the Florida Legislature enacted chapter 551, Florida
Statutes, entitled “Slot Machines,” which governs the operation of
slot machines at eligible facilities. A license to conduct slot
machine gaming is tied to a pari-mutuel wagering permit-holder.
See § 551.104(3), Fla. Stat. (2018).

    Section 551.102(4) defines the term “eligible facility” for
obtaining a slots permit 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 may possess slot machines and conduct

    1   § 23. Slot machines

    (a) After voter approval of this constitutional
    amendment, 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 pari-
    mutuel 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.



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    slot machine gaming at the location where the pari-
    mutuel permit-holder is authorized to conduct pari-
    mutuel wagering activities pursuant to such permit-
    holder’s valid pari-mutuel permit provided that a
    majority of voters in a countywide referendum have
    approved slot machines at such facility in the respective
    county.

     Calder Race Course, Inc., located in Miami-Dade County, has
been a pari-mutuel permit holder for thoroughbred horse racing at
its facility since 1971. As a pari-mutuel permit holder which
conducted live racing during 2002 and 2003, Calder qualified for
and obtained a permit authorizing it to have slot machine gaming
at its pari-mutuel facility. Calder recently obtained a summer jai
alai permit, and it intends to discontinue thoroughbred racing and
begin conducting jai alai games if it continues to qualify for a slot
machine permit after the change.

      On July 31, 2018, Calder Race Course petitioned the Florida
Department of Business and Professional Regulation, Division of
Pari-Mutuel Wagering (Division), for a Declaratory Statement in
regard to two questions related to its intent to terminate
thoroughbred racing, and to clarify whether the underlying basis
for its slot machine permit could be its jai alai permit, rather than
its thoroughbred horse racing permit:

    Question 1: Whether, pursuant to section 551.102(4),
    Calder may discontinue the operation of thoroughbred
    races and instead operate a full schedule of live jai alai
    performances in order to maintain its ‘eligible facility’
    status to continue to conduct slot machine operations?

    Question 2: If the answer to question 1 is ‘yes,’ and Calder
    operates jai alai performances in lieu of thoroughbred
    races, whether Calder is required to conduct summer jai
    alai performances in the state fiscal year preceding its
    operation of slot machines as a summer jai alai licensee?




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Question 1 was answered in the affirmative; Question 2 was
answered in the negative. 2

                       STANDARD OF REVIEW

     The issues in this case involve interpretation of the statutes
under chapters 550 and 551, Florida Statutes. The de novo
standard applies to this court’s review involving statutory
interpretation:

    In interpreting a state statute or rule, a state court or an
    officer hearing an administrative action pursuant to
    general law may not defer to an administrative agency’s
    interpretation of such statute or rule and must instead
    interpret such statute or rule de novo.

Art. V, § 21, Fla. Const.

                             ANALYSIS

     The issue before us is whether the Division erred by
interpreting the statutory definition of “eligible facility” to allow
Calder to continue its slot machine operation even if it ceases
thoroughbred racing and operates jai alai instead.

     The “polestar” of statutory interpretation is legislative intent;
when a statute’s language is clear and unambiguous, the actual
plain language of the statute represents the legislative intent. See
McCloud v. State, 260 So. 3d 911, 914 (Fla. 2018); Whynes v. Am.
Sec. Ins. Co., 240 So. 3d 867, 879 (Fla. 3d DCA 2018). When a
statute is clear and unambiguous, “courts will not look behind the
statute’s plain language for legislative intent or resort to rules of
statutory construction to ascertain intent.” See, e.g., Turbeville v.
Dep’t of Fin. Servs., 248 So. 3d 194, 196 (Fla. 1st DCA 2018)
(quoting Borden v. East–European Ins. Co., 921 So.2d 587, 595
(Fla. 2006)).




    2 We affirm the Division’s response to Question 2 without
further comment.

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     Section 551.102(4), defines an “eligible facility” for purposes
of obtaining a slot machine permit 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 may possess slot machines and conduct
    slot machine gaming at the location where the pari-
    mutuel permit-holder is authorized to conduct pari-
    mutuel wagering activities pursuant to such permit-
    holder’s valid pari-mutuel permit . . . .


     Calder’s thoroughbred horse racing facility satisfied the
elements of an “eligible facility” under the statute for purposes of
obtaining its slot machine license. Calder obtained its slot machine
license as an “eligible facility” under section 551.102(4) because it
qualified under the plain language of the referendum and the
statutory definition:

    it is a licensed pari-mutuel facility;
    it is located in Miami-Dade County;
    it existed as a licensed pari-mutuel facility at the time of
    adoption of section 23 of Article X of the Florida
    Constitution; and
    it had conducted live thoroughbred horse racing as a
    licensed pari-mutuel facility during the two calendar
    years prior to the referendum.

     Contrary to the appellants’ arguments, nothing in the plain
language of section 551.102(4) requires a facility to continue the
same form of pari-mutuel wagering activity that originally
qualified it for a slot machine license; nor does this statute tie an
“eligible facility” to the same type of racing or gaming as it had
when the constitutional amendment was approved.

    In July 2017, the Division issued a Declaratory Statement to
a greyhound racing permit-holder, West Flagler Associates, Ltd.,
addressing questions similar to those presented here. The link to



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the Division’s Declaratory Statement addressing West Flagler’s
questions is footnoted here: 3

     The Division stated that West Flagler could discontinue
greyhound racing and that a new West Flagler jai alai fronton
could be considered an “eligible facility” for slot machine gaming.
In making that determination, the Division used the same
interpretation of “eligible facility” that it used in this case.

     The appellants also argue that their interpretation of section
551.102(4), read in pari materia with statutes governing the
issuance and renewal of a slot machine gaming license, ties a slot
machine licensee to operating the same form of racing or gaming
as it had the two years prior to the approval of the constitutional
amendment. The appellants specifically identify five statutes
which could support their interpretation of the term “eligible
facility” in section 551.201(4): sections 550.002(11) and (23);
section 551.104(3); and sections 551.104(4)(b) and (4)(c).

    We cannot read any of these statutes to mean a slot machine
permit-holder would be required to continue to conduct the same
form of racing or games under which it obtained its slots permit.

     The appellants also interpret “eligible facility,” to suggest that
the “facility” is limited to only the portion of the property upon
which the racing activity was conducted when Calder was first
licensed. The appellees argue that “eligible facility” means the
over-all areas of the facility in which pari-mutuel activity takes
place. Defining “facility” too narrowly would not allow the slot
machines to be located in connected buildings or anywhere on the
premises that is not within the footprint of the actual racetrack or
fronton. We, as did the Division, reject this narrow interpretation.

    The Division’s plain meaning interpretation of section
551.104, Florida Statutes, is also supported by the Florida
Supreme Court’s recent opinion in Department of State v. Florida
Greyhound Ass’n, 253 So. 3d 513 (Fla. 2018). There, the court

    3  Available at:
https://www.doah.state.fl.us/FLAID/DPR/2017/DPR_0_07212017_
095005.pdf

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determined that article X, section 23, of the Florida Constitution,
did not impose a continuing requirement for facilities to conduct
greyhound racing in order for those facilities to qualify for slot
machine gaming licenses. See Id. at 523 (“Article X, section 23
imposes no continuing requirement for those facilities to conduct
dog racing or any other pari-mutuel activity in order to operate slot
machines.”). In reversing the circuit court’s ruling that the ballot
title and summary of the proposed Amendment 13 were defective,
the court found that pari-mutuel wagering permit-holders in
Miami-Dade or Broward Counties would qualify for slot machine
gaming licenses. 4

     The supreme court in Florida Greyhound Ass’n reasoned that
article X, section 23, of the Florida Constitution applied to past dog
racing, explaining that, even if dog racing eventually ceased, horse
racing and jai alai would continue and slot machine licenses based
on the same would continue to be linked:

    Absent . . . statutory requirements to conduct dog racing
    in order to maintain a current license in good standing,
    pari-mutuel permitholders in Broward County or Miami-
    Dade County would qualify to operate slot machines
    pursuant to Article X, section 23 even if they had not
    conducted a single race or game since 2003.


Fla. Greyhound Ass’n, 253 So. 3d at 123.

     Finally, the appellants argue that the ballot language of the
constitutional amendment or the referendums did not contemplate
a different type of racing or gaming being conducted at the same
licensed pari-mutuel facility in the future. That simply reads too
much into the ballot language and continues to misconstrue the
definition of an “eligible facility.”



    4 Amendment 13 sought to prohibit “racing of and wagering
on greyhounds or other dogs.”



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    We, therefore, AFFIRM.

ROBERTS and M.K. THOMAS, JJ., concur.

                 _____________________________

    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
               _____________________________


Donna E. Blanton and Brittany Adams Long of Radey Law Firm,
Tallahassee, for Florida Thoroughbred Breeders’ Association, Inc.,
d/b/a Florida Thoroughbred Breeders’ and Owners’ Association;
Ben J. Gibson, Daniel Hernandez, and Rachel Nordby of Shutts &
Bowen LLP, Tallahassee, for Appellant, Ocala Breeders’ Sales Co.,
Inc.

Katherine E. Giddings, BCS and Melanie C. Kalmanson of
Akerman, LLP, Tallahassee, and Tamara S. Malvin of Akerman
LLP, Fort Lauderdale, for Appellee, Calder Race Course, Inc.; Ross
Marshman, Chief Appellate Counsel, Department of Business &
Professional Regulation, Tallahassee, for Appellee, Florida
Department of Business and Professional Regulation, Division of
Pari-Mutuel Wagering.




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