                                    IN THE DISTRICT COURT OF APPEAL
                                    FIRST DISTRICT, STATE OF FLORIDA
WEST FLAGLER
ASSOCIATES, LTD.,                   NOT FINAL UNTIL TIME EXPIRES TO
                                    FILE MOTION FOR REHEARING AND
      Appellant,                    DISPOSITION THEREOF IF FILED

v.                                  CASE NO. 1D16-2374

FLORIDA DEPARTMENT OF
BUSINESS AND
PROFESSIONAL
REGULATION, DIVISION OF
PARI-MUTUEL WAGERING,

     Appellee.
___________________________/

Opinion filed April 4, 2017.

An appeal from the Department of Business and Professional Regulation, Division
of Pari-Mutuel Wagering. Anthony J. Glover, Director.

Thomas J. Morton, John M. Lockwood, and Kala Kelly Shankle of The Lockwood
Law Firm, Tallahassee, for Appellant.

Jason L. Maine, General Counsel, Dwight O. Slater, Chief Appellate Counsel, and
Chevonne T. Christian, Assistant General Counsel, Department of Business &
Professional Regulation, Tallahassee, for Appellee.




JAY, J.

      Once again, “[s]ummer jai alai permits are the focus of this appeal.” W.

Flagler Assocs., Ltd. v. Dep’t of Bus. & Prof’l Regulation, Div. of Pari-Mutuel
Wagering, 139 So. 3d 419, 420 (Fla. 1st DCA 2014). Specifically, we address

whether the Department of Business and Professional Regulation, Division of Pari-

Mutuel Wagering (“Division”), erroneously interpreted the provisions of section

550.0745(1), Florida Statutes (2015), in denying the application of West Flagler

Associates, Ltd. (“West Flagler”), for a permit to conduct summer jai alai. Finding

that the basis for the Division’s denial of the permit was premised on “an

insupportable reading of the statute,” we reverse. W. Flagler, 139 So. 3d at 420.

      On September 3, 2015, West Flagler filed with the Division an “Application

for New Summer Jai Alai Permit” for the 2011-2012 and 2012-2013 fiscal years

pursuant to paragraph (1) of section 550.0745. Paragraph (1) states in pertinent part:

      The owner or operator of a pari-mutuel permit who is authorized by the
      division to conduct pari-mutuel pools on exhibition sports in any county
      having five or more such pari-mutuel permits and whose mutuel play
      from the operation of such pari-mutuel pools for the 2 consecutive years
      next prior to filing an application under this section has had the smallest
      play or total pool within the county may apply to the division to convert
      its permit to a permit to conduct a summer jai alai fronton in such
      county during the summer season commencing on May 1 and ending
      on November 30 of each year . . . . If a permittee who is eligible under
      this section to convert a permit declines to convert, a new permit is
      hereby made available in that permittee’s county to conduct summer jai
      alai games as provided by this section . . . .

The West Flagler application was filed after the permittee—who was found eligible

to convert its existing permit—declined to make the statutory conversion. See S.

Fla. Racing Ass’n v. State, Dep’t of Bus. & Prof’l Regulation, Div. of Pari-Mutuel

Wagering, 201 So. 3d 57 (Fla. 3d DCA 2015).
                                          2
      On September 25, 2015, the Division issued a Letter of Intent in which it

denied West Flagler’s application, claiming:

      Section 550.0745, Florida Statutes, states in pertinent part “[t]he owner
      or operator of a pari-mutuel permit who is authorized by the division to
      conduct pari-mutuel pools on exhibition sports in any county having
      five or more such pari-mutuel permits and whose mutual play from the
      operation of such pari-mutuel pools for the 2 consecutive years next
      prior to filing an application under this section has had the smallest
      play or total pool within the county may apply to the division to convert
      its permit to a permit to conduct a summer jai alai fronton.”
      ([E]mphasis supplied). Section 550.0745, Florida Statutes, creates an
      exception to the general requirements to obtaining a pari-mutuel permit
      found in section 550.054, Florida Statutes. Specifically, the statute
      exempts the applicant from mileage restrictions and referendum
      requirements imposed by the general permit statute. Thus, section
      550.0745, Florida Statutes, must be strictly construed in determining
      whether a permit is eligible for conversion to a summer jai alai permit,
      or whether such permit is available if the eligible permitholder declines
      to convert.

      The application is based on the 2011/2012 and 2012/2013 fiscal years,
      which are not the 2 consecutive years next prior to the filing of this
      application. Therefore, your application is incapable of being approved
      and the division is not making any further determination on the merits
      of the availability of a permit.

West Flagler petitioned for an informal administrative hearing pursuant to section

120.57(2), Florida Statutes. In its petition, it argued that the Division erred in

denying the application because the Division erroneously applied the “next prior”

language found in the first sentence of section 550.0745(1) to its application for a

new summer jai alai permit filed according to the second sentence of that paragraph.




                                         3
The “next prior” language, according to West Flagler, is limited to summer jai alai

conversion applications.

       In her Recommended Order, the hearing officer rejected West Flagler’s

proposed interpretation and concluded that West Flagler’s application should be

denied because the Division had correctly determined that the application was based

on the 2011-2012 and 2012-2013 fiscal years, which, as she explained, were “not

the two consecutive years next prior”—or the two years “‘immediately prior’”—to

2015. See W. Flagler, 139 So. 3d at 422 (acknowledging that the phrase “‘next

prior’—though clumsy and seemingly contradictory—has been consistently used to

mean the ‘immediately prior’ instances,” citing Bryan A. Garner, A Dictionary of

Modern Legal Usage, 588 (2d ed. 1995)). The Division concurred, concluding that

the Recommended Order was “not premised on an erroneous or unreasonable

interpretation of section 550.0745(1), Florida Statutes,” and that “West Flagler’s

proposed substituted recommendation is not more reasonable than that of the

Hearing Officer’s.” The present appeal followed.

      Our analysis begins by recognizing that the “construction of a statute by an

agency responsible for its administration is entitled to great weight and should not

be overturned unless clearly erroneous.” Shell Harbor Grp., Inc. v. Dep’t of Bus.

Regulation, Div. of Alcoholic Beverages & Tobacco, 487 So. 2d 1141, 1142 (Fla.

1st DCA 1986). However, “judicial adherence to the agency’s view is not demanded

                                         4
when it is contrary to the statute’s plain meaning.” PAC for Equality v. Dep’t of

State, Fla. Elections Comm’n, 542 So. 2d 459, 460 (Fla. 2d DCA 1989). Here, we

find that the plain meaning of section 550.0745(1) creates two separate ways for

permittees to obtain a summer jai alai permit and hold that the Division’s conflation

of these two distinct permit opportunities improperly imposed unrelated timing

requirements on the “new permit” language.

       Under the first sentence of section 550.0745(1), a qualified pari-mutuel

permittee “may apply to the division to convert its permit to a permit to conduct a

summer jai alai fronton” when its “mutuel play from the operation of such pari-

mutuel pools for the 2 consecutive years next prior to filing an application under this

section has had the smallest play or total pool within the county.” When those

eligibility determinations have been established, that permittee may apply to the

division for a “permit to conduct a summer jai alai fronton in such county during the

summer season commencing on May 1 and ending on November 30 of each year . .

. .”

       The second opportunity occurs when the permittee—referenced in the first

sentence—declines to convert its permit. In that event, the second sentence of

section 550.0745(1) applies: “If a permittee who is eligible under this section to

convert a permit declines to convert, a new permit is hereby made available in that

permittee’s county to conduct summer jai alai games as provided by this section . . .

                                          5
.” § 550.0745(1), Fla. Stat. (emphasis added). At that point, paragraph (1) neatly

dovetails into the remaining paragraphs of section 550.0745, which define the finer

points governing the operation of a summer jai alai permit. See § 550.0745(2), (3),

& (4), Fla. Stat.

      Accordingly, we need not resort to cannons of statutory construction for, “try

as we might, we cannot read the language of the statute as the Division has

implemented it in this case.” W. Flagler, 139 So. 3d at 422. Under the unequivocal

terms of the statute in question, the period defined as “2 consecutive years next prior”

to the filing of an application operates only as to the first sentence of section

550.0745(1). Under the circumstances of the second sentence, a “new” permit is

created; conversion of an existing permit under the first sentence is simply not

envisioned.    The two separate instances are mutually exclusive, and the time

limitation placed by the legislature in the first sentence is conspicuously absent in

the second.

      Because the Division’s interpretation of section 550.0745(1) “is not

supportable,” we reverse the Final Order “with directions to reinstate West Flagler’s

application for the new summer jai alai permit at issue.” Id.

      REVERSED and REMANDED.

OSTERHAUS and WINSOR, JJ., CONCUR.




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