License Acquisitions, LLC v. Debary Real Estate Holdings, LLC

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,

vs.

DEBARY REAL ESTATE HOLDINGS, LLC, et al.,
Appellees.

[November 26, 2014]

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 appellees 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 -