NEXT COURT ON THE CALENDAR IS OCALA BREEDERS' SALES VERSUS FLORIDA GAMING CENTERS.
MAY IT PLEASE THE COURT. I AM LINDA COLLINS HERTZ. WITH ME AT COUNSEL FABLE TABLE IS BILLOW OPEN AT COUNSEL TABLE IS BILL HAMILTON. WE REPRESENT HOLLAND -- WE ARE BOTH FROM HOLLAND AND NIGHT. WE REPRESENT THE COMPANY OCALA BREEDERS' SALES CORPS ANY, INCORPORATED -- COMPANY, INCORPORATED, AND IT IS FROM THE FIRST DISTRICT COURT OF APPEAL, AFFIRMING THE TRIAL COURT'S DECLARATORY INJUNCTION, FINDING A FLORIDA STATUTE UNCONSTITUTIONAL, AND WE ARE HERE ON TWO GROUNDS, BASICALLY, WITH SEVERAL SUBSIDIARY ISSUES THAT ARE INVOLVED, BUT THE QUESTION THAT I THINK IS THE MOST INTERESTING AND, PROBABLY, SHOULD BE DISPOSITIVE FOR THIS COURT, IS THAT THE ISSUE IS MOOT. AND IT WAS MOOT WHEN IT WAS DECIDED BY THE FIRST DISTRICT COURT OF APPEAL. THE STATUTE WAS AMENDED DURING THE PROCESS OF THE APPEAL. AND WE, NOW, HAVE POSSESSION OF A LICENSE I SHOULD UNDER THE -- ISSUED UNDER THE NEW STATUTE. WE ARE NOT OPERATING, SO THE INJUNCTION HAS NO MEANING, AND THE INTERPRETATION OF THE STATUTE --
WHEN YOU SAY THE STATUTE WAS AMENDED --
YES.
-- THERE IS A RENUMBERING, HERE, AND -- WOULD YOU HELP ME OUT IN DETERMINING WHETHER OR NOT THERE IS STILL A SEX 615, AS OPPOSED TO THIS NEW NUMBERING, 6308 OR SOMETHING, SO?
THE ANSWER IS I CAN GUESS AT WHAT THE LEGISLATURE DID, BECAUSE THERE IS NOTHING --
6308 JUST DEALS WITH THAT ONE PORTION THAT IS SUBSECTION 9, DOESN'T IT?
YES.
SO WHAT ABOUT THE REST OF 615?
6 1R5 STILL EXISTS.
OKAY.
AND 615 SUBSECTION 9 HAS BEEN REPEATED IN THE 1998 SUPPLEMENT.
OKAY.
SO THE QUESTION IS WHAT HAPPENED THERE, AND WHAT I CAN ASSUME IS, WHEN THIS STATUTE WAS AMENDED, IT WAS DIRECTLY BECAUSE OF THE TRIAL COURT'S FINDING THAT PORTION UNCONSTITUTIONAL, SO, BUT, BY PROCESS OF PUTTING YOURSELF IN THEIR SHOES, THEY PASSED A NEW STATUTE, BECAUSE THE OTHER ONE WAS UNCONSTITUTIONAL, AND THEY ASSUMED IT NO LONGER EXISTED.
BUT THEORETICALLY, DON'T YOU STILL HAVE 615, SUBSECTION 9, WHICH WOULD RELATE TO PEOPLE WHO HAVE QUARTER HORSE PERMITS, AND THEN 6308, WHICH DOES NOT HAVE THAT LANGUAGE? SO IT SORT OF LOOKS LIKE, AT LEAST ON THE SURFACE, THAT THESE TWO COULD BOTH OPERATE.
IT MAKES NO LOGICAL SENSE TO DO THAT, AND I THINK THE -- IF THERE IS EVER A CONCEPT OF REPEAL BY IMPLICATION, THIS HAS GOT TO BE IT, BECAUSE THEY TOOK THE LANGUAGE OF THE 615 [9] AND IF YOU SUPERIMPOSE IT WITH THE LANGUAGE OF THE NEW STATUTE, THEY CARRIED OVER A LOT OF IT. THEY AMENDED WORDS HERE AND THERE. THEY AMENDED CONCEPTS, AND THERE IS ONLY ONE LICENSE TO BE I SHOULD.
-- TO BE ISSUED.
DOES THE LEGISLATURE SPECIFICALLY SAY, NORMALLY, WHEN THEY MEAN TO ABOLISH A STATUTE, DON'T THEY SPECIFICALLY SAY THAT, IN MOST INSTANCE? THEY DON'T LEAVE IT TO IMPLICATION. ISN'T THAT RATHER UNUSUAL?
WE WOULD HAVE NO NEED FOR A REVISE ORS PROVISION WITHIN THE STATUTES, IF THEY ALWAYS DID IT RIGHT. THEY DON'T ALWAYS DO IT RIGHT. WE HAVE LEARNED THAT.
BUT AFFORD A PRESUMPTION THAT THEY DID NOT MEAN TO ABOLISH IT?
MY PRESUMPTION IS, AND I THINK ONE THIS COURT COULD EASILY REACH, IS THEY THOUGHT IT WAS UNCONSTITUTIONAL AND WAS WIPED OUT AND THEY REPLACED IT.
YOU SAY PRESUMPTION GOING ONE WAY OR ANOTHER HERE?
NO. I DON'T THINK SO. I THINK YOU CAN ONLY STAY THE LATEST PRONOUNCEMENT BY THE LEGISLATURE IS THE ONE THAT APPLIES, AND IN THIS CASE THE LATEST PRONOUNCEMENT IS THEY AMENDED THE LANGUAGE OF 615-9 AND PUT IT INTO 6308, AND THEY TOOK BECAUSE WHAT THE TRIAL COURT TOOK TO BE A PROBLEM WITH 615-9, AND THEY ERASED IT.
DID THEY SAY THAT WELL ARE TAKING SUBSECTION 9? THEY DIDN'T SAY THAT, DID THEY? THEY ARE SAYING WE ARE NOW GOING TO REWRITE IT INTO 6308?
NO. THEY SAY THE STATUTE HAS BEEN HELD UNCONSTITUTIONAL BY THE TRIAL COURT, AND THE STATE IS LOSING $400,000 A YEAR BECAUSE THE STATUTE IS NO LONGER OPERATIVE. THEY DON'T MENTION THE STATUTE BY NAME, BUT THE HISTORY, I MEAN, THAT IS THE ONLY CONCLUSION YOU CAN DRAW FROM THE LANGUAGE.
I GUESS WHAT IS THE HARM, IF WE WERE TO UPHOLD THAT THE LEGISLATURE ASSUMES IT WAS UNCONSTITUTIONAL, IF WE JUST UPHOLD THE FIRST DISTRICT'S OPINION? WHERE IS THE HARM, IF IT DOESN'T MATTER, I MEAN, YOU SAY IT IS MOOT, BUT SINCE WE ARE NOT SURE, THAT IS WHAT THE LEGISLATURE DID, WITH WHY DON'T WE MAKE SURE BY AFFIRMING THE FIRST DISTRICT'S OPINION?
I THINK, FIRST OF ALL, WE ARE SURE THAT THAT IS WHAT THE LEGISLATURE DID. I DON'T THINK THAT THERE IS A LOGICAL CONCLUSION OTHERWISE, BUT THE HARM IS THAT YOU ARE, THEN, ISSUING AN ADVISORY OPINION, AND YOU ARE APPROVING THE FIRST DISTRICT'S ISSUEING AN ADVISORY OPINION. THIS COURT HAS JURISDICTION TO ISSUE ADVISORY OPINIONS IN LIMITED SITUATIONS. THIS IS CERTAINLY NOT ONE OF THEM. AN ISSUE, IF IT IS MOOT, THE COURT CAN CONTINUE TO HEAR IT, IF IT FITS CERTAIN CRITERIA, NONE OF WHICH ARE APPLYING HERE.
BUT WHY DO YOU CARE?
WE CARE, BECAUSE THEY ARE STILL LITIGATING. THEY ARE STILL RELYING UPON THE FIRST DISTRICT'S OPINION AND THE TRIAL COURT'S OPINION IN THEIR CHALLENGE TO 6308, AND THEY ARE SAYING IT IS PRECEDENT.
WELL, IF THE REASONING WOULD BE APPLICABLE TO THAT, REASONING WOULD BE APPLICABLE NO MATTER WHAT. IF IT IS. IN OTHER WORDS, IF IT IS VALID. YOU ARE NOT CLAIMING ANY BENEFIT, UNDER THE STATUTE?
THEY ARE CLAIMING THAT, IF THERE IS A PARTICULAR PHRASE THAT THE DISTRICT COURT OF APPEAL DIDN'T LIKE, THEN THAT IS PRECEDENT FOR THE NEW STATUTE, BECAUSE IT HAS SOME OF THE SAME PHRASEOLOGY. SO THE HARM IS, AS MUCH PSYCHOLOGICAL FOR THE TRIAL COURT, THE NEXT TIME IT IS GOING TO HEAR IT, AS TO WHETHER OR NOT AM I BOUND BY THIS OR NOT, IT REALLY CREATES HAVOC WHERE THERE SHOULD BE NONE. I MEAN WE ARE READY TO LITIGATE THE NEW STATUTE, AND WE BELIEVE THE OLD STATUTE IS PERFECTLY CONSTITUTIONAL, BUT THERE IS NO REASON FOR THE COURTS TO REACH OUT TO DECIDE IT, WHEN ITS DECISION ON THE QUESTION CAN HAVE NO IMPACT BELOW, IN TERMS OF CARRYING OUT THE ORDER OF THE COURT, AND NOW WE ARE INTO THE NEW FISCAL YEAR, AND WE HAVE A LICENSE UNDER THE NEW STATUTE FOR THE NEW FISCAL YEAR, SO THERE IS NO QUESTION ABOUT THE APPLICABILITY OF 615-9.
DO YOU STILL HAVE YOUR LICENSE UNDER THE OLD STATUTE?
NO.
WE KNOW THAT IN THIS RECORD?
YES, THE RECORD IS BECAUSE WE WERE CONSTANTLY FILING MOTIONS WITH ATTACHMENTS, DEALING WITH THE MOOTNESS ISSUE, AND WE WERE ISSUED A AMENDED LICENSE ON FEBRUARY 5, FOR OUR PRIOR LICENSE THAT WAS UNDER 615-. IT WAS AMENDED -- 615-9. IT WAS AMENDED BY THE STATE. THE STATE IS ABSOLUTELY ACTING AS IF THERE IS NO 615-9, AND AND THEIR INTERPRETATION IS THAT WE ARE PROCEEDING PROPERLY UNDER 615 ONLY. WE HAVE AN AMEND LICENSE THAT CARRIED OVER FROM FEBRUARY 5 TO JULY 1.
ARE THERE OTHER ENTITIES, DO WE KNOW, THAT HAVE RECEIVED LICENSES UNDER 6308?
AS FAR AS I KNOW, AND AS FAR AS THIS RECORD IS CONCERNED, NO ONE ELSE HAS APPLIED. THIS IS NOT A MATTER OF GREAT PUBLIC INTEREST ACROSS THE STATE. THERE ARE ONLY TWO PARTIES THAT HAVE EVER SHOWN ANY INTEREST IN IT.
BUT 6308 -- BUT UNDER 6308, YOU CAN STILL HAVE ONLY ONE LICENSE I SHOULD THROUGHOUT THE STATE?
FOR CARRYING ON INTERTRACK WAGERING FOR HORSES ACROSS THE STATE AT FACILITIES.
DON'T YOU HAVE A LOCK ON IT? YOU SAY THE STATUTE APPLIED?
NO, WE DON'T, AND FOR THAT I WILL MOVE INTO THE MERITS OF THE ISSUE. BECAUSE WE DON'T HAVE A LOCK ON IT, AND IF YOU WANT TO DECIDE WHAT THE NEW STATUTE SAYS, AND THEN YOU ARE REALLY REACHING, BECAUSE NOBODY HAS DECIDED THAT, BUT UNDER THE OLD STATUTE WE DON'T HAVE A LOCK ON IT.
WHY NOT?
I AM TELLING WHAT MY POSITION IS, AND WHAT WE URGE YOU TO DO IS TO RECOGNIZE WHAT THE LEGISLATURE DID AND THE DIVISIONS IT CREATED WITHIN 615-9, SUBSECTION A, DEALING WITH THE CRITERIA WITH APPLYING FOR THE LICENSE. SUBSECTION B DEALS WITH THE CRITERIA TO APPLY, WHEN MORE THAN ONE PERSON APPLIES FOR THE LICENSE, AND THERE ARE OTHERS WHO DEAL WITH WHAT HAPPENS WHEN YOU HAVE THE LICENSE. SUBSECTION A IS THE CRITERIA. THIS IS A DECLARATORY JUDGMENT ACTION, WHERE THEY HAVE COMPETITIVE INJURY CLAIMED UNDER THE STATUTE. THE ONLY COMPETITIVE INJURY IS IF THERE IS A LICENSE AT ALL, NOT WHO GETS IT, SO IT IS MY POSITION THAT YOU OUGHT TO EXAMINE THESE, SEX BY SEX, AND START WITH SUBSEX A. THERE ARE THE REQUIREMENTS FOR A QUARTER HORSE PERMIT. THERE ARE NO RESTRICTIONS ON THE NUMBER OF QUARTER HORSE PERMITS THAT CAN BE OBTAINED. OCALA BREEDERS HAS HAD A QUARTER HORSE PERMIT SINCE 1985. WE BUILT A PERMANENT FACILITY THAT WOULD ACCOMMODATE IT, AND THAT IS ALL THE STATUTE REQUIRES, SO THE FACT THAT IT CAN OR DID --
UNDER THAT QUARTER HORSE PROVISION, AND ANOTHER SUBSECTION, I BELIEVE SUBSECTION E, THERE IS A PROVISION THAT SORT OF -- I GUESS A QUARTER HORSE LICENSE, AS I UNDERSTAND IT, CAN BE REVOKED, IF YOU DON'T USE IT OVER A CERTAIN PERIOD OF TIME?
THAT IS A PARTIAL STATEMENT THAT THE APPELLANT -- I MEAN THE APPELLEE HAS RELIED ON FROM TIME TO TIME, BUT THERE ARE TWO PROVISIONS. YOU HAVE TO APPLY FOR IT. YOU HAVE TO RUN RACES, OR, UNLESS PROVISO CLAUSE, UNLESS YOU BUILD THIS PERFECTLYNENT FACILITY, AND THEY HAVE A DEFINITION OF WHAT SUBSTANTIAL COMMENCEMENT -- WE BUILT THE PERMANENT FACILITY, SO WE DON'T FALL UNDER THE CRITERIA FOR USE IT OR LOSE IT, BECAUSE WE HAVEN'T RUN QUARTER HORSE RACES, SO THAT IS AN ILLUSION THAT HAS BEEN ARGUED.
WHAT IS THE PURPOSE, WITHIN SUBSECTION E, WHICH TALKS ABOUT, EVEN IF YOU HAVE THE QUARTER HORSE LICENSE AND YOU DON'T USE IT, THAT WON'T PREVENT YOU FROM GETTING ONE OF THESE LICENSES?
THE PURPOSE? I DON'T KNOW WHAT THE PURPOSE IS, OTHER THAN IT IS WITHIN THE PREROGATIVE OF THE LEGISLATURE TO PASS LAWS AND HAVE, IN ONE SECTION, IF THIS APPLIES, THEN ANOTHER SECTION OF OUR OWN LAWS WON'T TAKE EFFECT, AND THAT WOULDN'T JUST APPLY TO US. THAT WOULD APPLY TO ANYBODY WHO HELD A QUARTER HORSE PERMIT, BUT THE PROBLEM WITH THAT ENTIRE SECTION IS BECAUSE NOBODY WHO HAS A QUARTER HORSE PERMIT HAS OBJECTED TO THIS. WE DON'T HAVE STANDING, IT SEEMS TO ME, TO CONSIDER THE VALIDITY OF SUBSECTION E, AND YOU COULD STRIKE IT COMPLETELY AND STILL HAVE THE ONE LICENSE ISSUED UNDER SUBSECTION A, SO IT IS REALLY A RECEIVERABLE ISSUE AND ONE THAT -- A SEVERABLE AND ONE THAT I DON'T THINK THE COURT NEEDS TO GET INTO. NOW, IF YOU LOOK AT SUBSECTION B, I THINK THE LANGUAGE USED BY THE DISTRICT COURT OF APPEAL AND THE STATUTE, BOTH SAY THAT THERE IS THE THEORETICAL PROBABILITY THAT SOMEBODY ELSE COULD QUALIFY UNDER SUBSECTION A, AND THEREFORE THEY MINGLE AND BRING IN, UNDER SUBSECTION B, OKAY, IF SOMEBODY ELSE DID APPLY, THEY WOULD NEVER GET IT. EVEN THAT IS NOT TRUE. IN SUBSECTION B, YOU HAVE THE REQUIREMENT FOR SOMEONE WHO HAS A PERMANENT FACILITY IN THIS STATE. NOW, THAT IS THE ONLY ONE THAT OCALA WOULD HAVE A LOCK ON, AND IT IS BECAUSE OF IT IS THE LENGTH OF TIME THEY HAVE HAD THE PERMANENT FACILITY. WE HAVE THE PERMANENT FACILITY. SO WE WOULD WIN THAT, IF YOU JUST LOOKED AT THE DIFFERENT CRITERIA. THE OTHER ONE IS THE VOLUME OF SALES OF THOROUGHBRED HORSES. NOW, THERE IS NOTHING THIS THERE THAT WOULD PROHIBIT ANYBODY, AND FACEK TIPTON IS A NATIONAL THOROUGHBRED HORSE SALES COMPANY, TO PROHIBIT FACEK TIPTON FROM COMING IN, BUILDING ITS FACILITY, MAKING IT MUCH GRANDER, HUGER, MORE INTERESTING THAN WE HAVE, AND APPLYING AND HAVING A LARGER VOLUME, AND THEN THE OTHER CRITERIA IS THE -- OKAY, WE HAVE THE LENGTH OF TIME, THE -- I AM BLANKING ON WHAT THE THIRD ONE WAS. CAN ANYBODY HELP ME OUT? IT IS THE VOLUME. IT IS THE LENGTH OF TIME YOU HAVE HAD THE FACILITY, AND THE LENGTH OF TIME YOU HAVE BEEN SELLING HORSES IN THE STATE OF FLORIDA. FACEK TIPTON HAS BEEN SELLING HORSES IN THE STATE OF FLORIDA FOR YEARS. THERE IS NO SHOWING THAT WE WOULD HAVE AN ABSOLUTE LOCK ON THAT. SO YOU TAKE JUST ONE AND TWO, THERE ARE TWO THAT WE WOULD NOT NECESSARILY WIN, AND THERE HAS BEEN NOBODY TESTING IT, AND THE SECOND REQUIREMENT IS THAT THE STATE HAS TO GIVE DEFERENCE TO THOSE WHO BETTER QUALIFY UNDER THESE CRITERIA, SO I DON'T THINK WE NECESSARILY HAVE A LOCK, UNDER SUBSECTION B, BUT I DON'T THINK YOU NEED TO GET THAT. YOU NEED TO LOOK AT SUBSECTION A, AND IT IS NOT A SPECIAL ACT.
DID I UNDERSTAND YOU CORRECTLY, A FEW MINUTES AGO, AND DID YOU SAY THAT THE JAI ALAI DID NOT HAVE STANDING TO RAISE THIS ISSUE?
I SAY -- I AGREE THEY HAVE STANDING TO CHALLENGE SUBSECTION A, WHICH IS THE ONLY ONE THAT GIVES THEM A COMPETITIVE INJURY, A CLAIM OF COMPETITIVE INJURY.
YOU ARE SAYING THEY DON'T HAVE STANDING UNDER SUBSECTION E.
THEY DON'T HAVE STANDING TO GO INTO B & E.
LET ME JUST ASK YOU, ON THE ISSUE AS TO WHETHER THIS IS A LAW THAT IS TAILOR MADE FOR YOUR CLIENT ONLY, AND WHAT IS THE BASIS FOR OUR REVIEWING WHETHER THAT IS THE CASE OR NOT? THERE IS SOME LANGUAGE IN SOME OF THE CASES THAT TALKS ABOUT THE FACT FINDER HAS TO ASK THE QUESTION, CAN IT APPLY OR NOT. NOW, YOU HAVE JUST MENTIONED ANOTHER BREEDER OR A FACILITY. HOW -- DO WE -- IS IT INCUMBENT ON THIS COURT, THEN, TO LOOK AT THE RECORD THAT WAS BEFORE THE TRIAL COURT AND LOOK AT WHETHER THERE WERE FACTS DEVELOPED TO SHOW THAT OTHER INDIVIDUALS OR OTHER ENTITIES COULD QUALIFY?
I BELIEVE, IF YOU ARE GOING TO GET INTO THE MERITS OF IT, YOU WOULD NEED TO DO THAT, TO ASCERTAIN WHETHER OR NOT THE FIRST DISTRICT COURT OF APPEAL --
ISN'T THIS JUST A QUESTION OF LAW, THOUGH?
IT IS A QUESTION OF LAW, BUT THE STATUTE IS PRESUMED CONSTITUTIONAL. IT WAS PRESUMED CONSTITUTIONAL BELOW. IT WAS PRESUMED CONSTITUTIONAL IN THE FIRST DISTRICT, AND IT IS STILL PRESUMED CONSTITUTIONAL, SO THAT WHAT YOU HAVE TO DO IS LOOK AND SEE IF THERE IS ANYTHING THAT CUTS AGAINST THAT PRESUMPTION. NOW, THIS WAS SUMMARY JUDGMENT.
AND YOU -- DID BOTH SIDES AGREE THAT IT SHOULD BE A SUMMARY JUDGMENT?
WE COUNTERED THAT THEY HAD NOT MET THEIR BURDEN ON PROVING THE FACTS. THEY HAD TO PROVE THE NEGATIVE. THEY SAID NOBODY ELSE CAN APPLY. FACEK TIPTON'S REPRESENTATIVE, IN A DEPOSITION THAT IS IN THE RECORD, SAID WE HAVE NOT BUILT A PERMANENT RESIDENCE. WE HAVE NEVER SOUGHT AN INTERTRACK WAGERING PERMIT, BUT WE DON'T RULE OUT THAT POSSIBILITY.
BUT YOU DIDN'T SAY THE SUMMARY JUDGMENT WAS INAPPROPRIATE.
NO. WE ASKED FOR SUMMARY JUDGMENT, AS DID THEY, BUT IF YOU WANT TO LOOK TO THE FACTS, THERE ARE NO FACTS TO PROVE THAT NEGATIVE. I WILL RESERVE MY TIME FOR REBUTTAL.
THANK YOU, COUNSEL.
MR. SMITH.
BUT DO THEY EACH HAVE AN
AREA OF OPERATION?
THEY DO.
AND WHAT IS THAT?
AS FAR AS I CAN TELL, THERE
IS A LICENSE AVAILABLE UNDER
EITHER ONE OF THEM.
AND THE FACT THAT THERE HAS
BEEN NO NEW LICENSE REPLACING
THE ONE THAT THEY SAY THAT
THEY ABANDONED TEMPORARILY,
UNTIL WE WIN THE LAWSUIT ON
THE NEW STATUTE IN THE COURT
BELOW, THE REASON THERE HAS
BEEN NO NEW LICENSE HERE UNDER
SUB9 IS THAT NOBODY ELSE CAN
QUALIFY FOR IT.
IT IS NOT MOOT.
REMEMBER THAT YOU ARE SITTING
AS COURT OF ERROR.
IS THAT IN THE RECORD?
WHAT?
HAS THAT BEEN DETERMINED BY
A LOWER COURT THAT, NOBODY
ELSE CAN QUALIFY?
YES.
NOBODY ELSE CAN QUALIFY.
UNDER THE PRIOR LAW.
YES.
THE NEW LAW --
THE LAW THAT THEY SAY HAS
NOW BEEN ABANDONED BY THEIR
LICENSURE, YES, THAT IS THE
MERIT'S DECISION.
AM I UNDERSTANDING YOUR
QUESTION?
YES.
DON'T THEY MAINTAIN THAT,
NOW, THEY HAVE A NEW LICENSE,
UNDER THE NEW LAW?
THAT IS WHAT THEY SAY, YES,
AND THEY DO.
NOW, HAS BEEN THAT BEEN
CHALLENGED?
SIR?
HAS THAT BEEN CHALLENGED?
YES, AND THAT CHALLENGE IS
UNDER WAY IN THE CIRCUIT COURT
NOW, AND SO WHAT THE APPELLANT
IS ASKING YOU TO DO, AS A
COURT OF ERROR, IS TO SAY THIS
IS A DIRECT APPEAL, OF COURSE,
FOR THE DISTRICT COURT OF
APPEAL, BECAUSE OF HOLDING THE
UNCONSTITUTIONALITY OF THE
STATUTE, THAT THE DISTRICT
COURT OF APPEAL ERRED IN NOT
DISMISSING THE APPEAL AND
VACATING THE JUDGMENT OF THE
CIRCUIT COURT.
I KNOW OF NO CASE IN WHICH AN
APPELLANT HAS EVER PREVAILED
BY SUCH A PROPOSITION AS THAT.
WE LOST IN THE CIRCUIT COURT.
WE APPEALED.
WE LOST ON THE APPEAL.
WE NOW ASK THE SUPERIOR COURT,
I.E. THE SUPREME COURT, TO
VACATE THE DISTRICT COURT
DECISION, TO VACATE THE
CIRCUIT COURT DECISION,
BECAUSE OUR APPEAL WAS
UNNECESSARY.
THE STATUTE WHICH WAS HELD
BELOW TO BE UNCONSTITUTIONAL
IS A DEAD LETTER.
IT IS TO BE REPLACED BY A NEW
STATUTE, AND WHEN, IN FACT, IT
HASN'T BEEN REPLACED IN THE
STATUTES.
THEY DID RAISE MOOTNESS,
BEFORE THE FIRST DISTRICT.
DISTRICT COURT OF APPEAL.
YES.
SO IT WOULD BE, IF IT WERE,
INDEED, MOOT, IF THERE WAS NO
QUESTION BUT THAT THIS STATUTE
WAS REPEALED, WOULD THERE BE
-- WOULDN'T WE HAVE THE
AUTHORITY TO LOOK AND REVIEW
THE QUESTION AS TO WHETHER THE
FIRST DISTRICT SHOULD HAVE
DECIDED THE CASE?
ABSOLUTELY.
YOU HAVE GOT THE JURISDICTION.
BUT THE QUESTION FOR THE
DISTRICT COURT OF APPEAL WAS
SHOULD WE VACATE THE JUDGMENT
OF THE CIRCUIT COURT.
IF THE STATUTE HAD BEEN
REPLACED, WHICH IT HASN'T,
EVEN IN FLORIDA STATUTES 1999,
AND IF IT WERE NOT POSSIBLE
FOR THERE TO BE A PARALLEL
LICENSING SCHEME, WHICH THERE
CERTAINLY IS, SINCE THE NEW
STATUTE DOES NOT FORECLOSE
LICENSURE UNDER THE OLD,
JUSTICE QUINCE.
THE DISTRICT COURT OF APPEAL
WOULD STILL BE CONFRONTED WITH
THE FAMILIAR QUESTION UNDER
MOOTNESS, CAPABLE OF
REPETITION YET RATING REVIEW,
AND WE WOULD SAY TO THE
DISTRICT COURT OF APPEAL THE
NEW STATUTE IS SUFFICIENTLY
SIMILAR TO THE OLD, THAT IT
HAS ALL OF THE CONSTITUTIONAL
DEFECTS OF THE OLD, AND THIS
IS A DECISION THAT THIS COURT
OUGHT TO RENDER, FOR THE
GUIDANCE OF THE LOWER COURTS,
IN RESPECT TO THE SAME SUBJECT
MATTER, CAPABLE OF REPETITION
YET EVADING REVIEW, AND THE
DISTRICT COURT OF APPEAL WOULD
HAVE AUTHORITY TO AGREE WITH
US, AND THEN THE QUESTION
WOULD BE, BEFORE THIS COURT,
IS THAT DOCTRINE JUST NO
LONGER APPLICABLE, SO THAT THE
DISTRICT COURT OF APPEAL COULD
NOT HAVE PROPERLY ACCESSED IT?
I DON'T THINK -- I REALLY
THINK WE HAVE BEAT THIS TO
DEATH, THIS MOOTNESS BUSINESS.
AND I AM SIMPLY SAYING TO YOU
THAT THE BEST EVIDENCE, FROM A
PRACTICAL STANDPOINT THAT,
THESE ARE TWO SEPARATE
LICENSING SCHEMES, UNDER WHICH
THIS PARTICULAR APPLICANT,
WHICH, ALONE, CAN QUALIFY
UNDER EITHER, WILL TOGGLE BACK
AND FORTH IN FUTURE YEARS, IF
THIS STATUTE REMAINS ON THE
BOOKS.
WHAT YOUR ARGUMENT, JUST SO
I UNDERSTAND THIS, TO SAY THAT,
IF WE DON'T REACH THE ISSUE,
THEN THEORETICALLY WHAT COULD
HAPPEN IS THEY COULD GO BACK
TOMORROW AND APPLY FOR THE
LICENSE, UNDER SUBSECTION 9,
WHICH YOU SAY HAS NOT CLEARLY
BEEN REPEALED, AND THEN WE
WOULD BE BACK WHERE WE
STARTED.
THAT'S CORRECT.
AND DONE BY DECLARATION.
ISN'T THAT THE ULTIMATE
RESULT OF THE QUESTION THAT I
WAS --
YES.
-- GOING TO ASK, BUT ISN'T
THAT JUST A PART OF THE
SYSTEM?
IF, DURING THE COURSE OF
LITIGATION, SOMETHING SHOULD
BECOME MOOT, THE COURTS HAVE
SAID WE DON'T WANT TO RENDER
ADVISORY OPINIONS THAT WILL
GUIDE PEOPLE IN THE FUTURE.
WELL, THE CIRCUIT COURT'S
OPINION WAS AN ADVISORY
OPINION, EVEN BY THAT STANDARD,
AND SO WHAT THEY ARE ASKING
YOU IS NOT TO WITHHOLD AN
ADVISORY OPINION BUT TO VACATE
AN OPINION THAT WAS A LIVE
CONTROVERSY, BECAUSE THEY SAY
IT LATER BECAME MOOT.
THIS IS THE POINT ABOUT AN
APPELLANT, COMPLAINING ABOUT A
DECISION, AND SIMULTANEOUSLY
SAYING MY APPEAL IS MOOT.
YOU DON'T HAVE TO DECIDE IT.
YOUR HONOR WOULD BE SAYING
THAT THE CIRCUIT JUDGE WASTED
HIS OR HER TIME IN HANDLING
THIS CASE, SINCE THERE WAS
NOTHING TO DECIDE AS
DETERMINED BY A LATER ACTION
OF THE LEGISLATURE.
IT JUST DOESN'T HOLD UP.
BUT THE RELIEF THAT YOU ARE
ASKING IS THAT WE JUST PREVENT
THEM FROM DOING THIS IN THE
FUTURE, FROM GOING BACK TO THE
OLD STATUTE.
WELL, THE EFFECT OF THIS,
OF YOUR HONOR AFFIRMING THE
DISTRICT COURT OF APPEAL,
WOULD BE DETERMINED.
I SUPPOSE, IN LATER LITIGATION,
WE ARE ASKING YOU TO AFFIRM
THE DISTRICT COURT OF APPEAL'S
CORRECT DECISION.
THEY ARE ENTITLED TO APPEAL IT
HERE, APPEAL IS A RIGHT.
YOUR HONORS CAN DECIDE WHETHER
THEY CORRECTLY DECIDED IT.
YES, I THINK YOU WOULD HOLD
THAT IT IS UNCONSTITUTIONAL,
THEN IT WOULD DISAPPEAR FROM
FLORIDA STATUTES 200 SUP.
THEN IT WOULD DISAPPEAR.
BUT THE LEGISLATURE HASN'T
MADE IT DISAPPEAR.
WOULD YOU ADDRESS THE
APPELLANT'S ARGUMENT THAT YOU
DON'T HAVE STANDING TO
CHALLENGE THE SUBSECTIONS B &
E, I BELIEVE THEY SAY, OF 615?
THE STATUTE WAS ENACTED IN
ITS PARTS, SIMULTANEOUSLY,
CONTEMPORANEOUSLY, ALL AS ONE
PACKAGE, AND THE SEPARATION
INTO PARTS A AND B WAS SIMPLY
A MATTER OF ORGANIZATION.
IT IS ONE COHERENT WHOLE.
THE CIRCUIT COURT FOUND THAT
OUR PROFITS HAD BEEN IMPACTED
IN THE JAI ALAI, BY PEOPLE WHO,
INSTEAD OF COMING TO A LIVE
JAI ALAI PARI-MUTUEL EVENT AT
OUR FACILITY, GO TO THE OFF
TRACK BETTING PARLOR THAT THEY
WILL ARE RUNNING IN CONNECTION
WITH THEIR HORSE FARM.
AND SO WE DO HAVE STANDING, BY
REASON OF ECONOMIC INJURY.
AND THAT WAS NOT ATTACKED IN
THE DISTRICT COURT OF APPEAL,
AND, IN FACT, THE STANDING
ISSUE WAS, IN THE TRANSCRIPT
OF THE SUMMARY JUDGMENT
HEARING IN THE CIRCUIT COURT,
THEY SAID WE DON'T RELY UPON
IT.
THAT IS THE BEST I CAN DO WITH
THAT, YOUR HONORS.
NOW, LET ME GET TO IT.
YOUR HONORS HAS IN MIND, THEY
TALK ABOUT THEY HAVE A
PERMANENT FACILITY.
WHAT THEY HAVE IS A PERMANENT
SALES FACILITY.
THIS IS A HORSE FARM.
THEY HAVE GOT A PERMANENT
SALES FACILITY.
THE STATUTE DOESN'T REQUIRE
THEM TO HAVE A PERMANENT
RACETRACK.
THEY HAVE GOT A PERMANENT
SALES FACILITY.
BEAR IN MIND THOROUGHBREDS
VERSUS QUARTER HORSES.
THOROUGHBREDS STAND IN THE
ENGLISH LINEAGE.
THEY WERE ENGLISH MARES BRED
TO ARABIAN STALLIONS, BIG,
FAST HORSES OVER LONG
DISTANCES.
THOROUGHBRED IS DEFINED, BY
FLORIDA LAW, AS HORSES OF A
SPECIES LISTED IN A PARTICULAR
LIST.
QUARTER HORSES, ON THE OTHER
HAND, WERE PRODUCTS OF THE
AMERICAN SOUTHWEST, THE COWBOY,
WORKING CATTLE, SMALLER HORSES,
DEFINED, CHARACTERCALLY, IN
THE DICTIONARY, AS FAST HORSES
OVER SHORT DISTANCES.
DEFINED IN THE FLORIDA
STATUTES CONSISTENTLY WITH
THAT IS ON ANOTHER LIST.
TO HOLD A LICENSE, A QUARTER
HORSE RACING LICENSE, IF YOU
AND I OWN QUARTER HORSE RACERS,
WE COULD GO RACE THOSE HORSES.
WE DON'T NEED A PERMIT TO DO
THAT.
WHAT WE CAN'T DO IS CONDUCT
PARI-MUTUEL BETTING.
WE CAN'T ENTERTAIN PEOPLE AND
SELL BETING WITH ODDS, AND
THAT IS WHAT IS AT STAKE HERE.
IN FLORIDA, WE DO NOT HAVE OFF
TRACK BETTING PARLORS.
REMEMBER "THE STINK" PAUL
NEWMAN?
WE DON'T HAVE -- THE SING"
PAUL NEWMAN?
-- REMEMBER "THE STING" PAUL
NEWMAN?
WE DON'T HAVE THAT IN FLORIDA.
THIS IS A PERMANENT FACILITY
FOR THOROUGHBRED HORSES, AND
IT HAS A VACANT QUARTER HORSE
PERMIT TO CONDUCT QUARTER
HORSE RACING THAT IT NEVER HAS
CONDUCTED AND WON'T CONDUCT.
ISN'T THE WHOLE POINT OF
550.615 IS TO NOW ALLOW A
LIMITED AMOUNT OF OFF TRACK
BETTING?
ISN'T THAT WHAT 550.615 IS ALL
ABOUT?
ONLY IN CONJUNCTION WITH
ON-SITE PARI-MUTUEL WAGERING,
ATTACHED TO A LIVE SPORT BEING
CONDUCTED ON THE SITE.
WHETHER IT IS DOGS OR JAI ALAI
OR QUARTER HORSE RACING OR
THOROUGHBRED RACING, BUT WITH
THAT QUALIFICATION, YOU ARE
RIGHT.
AND SEX 9 IS THE ONLY --
AND SECTION 9 IS THE ONLY
EXCEPTION TO THAT, SUBSECTION
9.
CORRECT.
IT IS THE ONLY AREA WHERE YOU
HAVE PARI-MUTUEL ON SITE
CONNECTED WITH A REGULATED
SPORT OF RACING ON SITE.
THIS IS, AS I SAY, LICENSES A
FARM, A HORSE FARM, WHICH
CONDUCTS THOROUGHBRED SALES
REGULARLY, AND ONCE A YEAR
RUNS A THOROUGHBRED RACE,
WHICH THEY ARE PROHIBITED PIE
LAW FROM TAKING ANY BETS ON, A
NONWAGERING THOROUGHBRED RACE,
REQUIRES THAT ENTITY TO HAVE A
QUARTER HORSE PERMIT LICENSING,
WHICH WOULD AUTHORIZE AND
REQUIRE QUARTER HORSE RACING
ON SITE, AT A PERMANENT RACING
FACILITY, WITH PARI-MUTUEL
WAGERING ATTACHED TO THE
QUARTER HORSE RACING.
AND AS AN ADJUNCT TO THAT, OFF
SITE PARI-MUTUEL BETTING WITH
OTHER SPORTS IN FLORIDA THAT
ARE REGULATED BY THE
DEPARTMENT.
THIS IS THE ONLY EXCEPTION, IS
THIS OUTFIT HERE, IS THAT
EVERYBODY ELSE WHO HAS A
QUARTER HORSE PERMIT LICENSE
HAS EITHER GOT TO USE IT OR
THEY WILL LOSE IT, AND THEY
HAVE BEEN REVOKED, SO THE
RECORD SHOWS, FOR NOT RUNNING
THE SPORT.
YOU SAY THAT THIS IS A
SPECIAL LAW?
THAT IS EXACTLY WHAT IT IS.
IT IS A SPECIAL LAW, ENACTED
IN VIOLATION OF ARTICLE III,
SECTION 10, AND THE SAME
ANALYSIS OF EQUAL PROTECTION,
AS EMPLOYED BY THIS COURT, IN
THE HIALEAH RACE COURSE, THE
CLASSIC MILE CASE AND THE WEST
FLAGLER --
WHY CAN'T WE SEE IT AS A
LAW AFFECTING THE ECONOMY OF
THE STATE?
IT CREATES A CLASSIFICATION,
YOUR HONOR, FOR WHICH THERE IS
NO ENTRY.
THE DEFINITION OF A GENERAL,
OF A SPECIAL LAW, UNDER THE
CONSTITUTION, IS THAT IT
AFFECTS ONE PERSON.
OR ONE SUBJECT.
RATHER THAN THE OSTENSIBLE
CLASS.
IT AFFECTS ONE PERSON, IN
YOUR ARGUMENT, BUT DOESN'T IT
AFFECT MORE THAN ONE ENTITY OR
ONE --
IT CERTAINLY AFFECTED MY
CLIENT, BUT THE POINT ABOUT IT
IS, IS IT OPERATE TO CREATE A
LICENSE, TO GIVE A RIGHT TO
ONE PERSON, BY A
CLASSIFICATION SCHEME THAT IS
A SHAM, THAT IS DIRECTED
TOWARD THE AWARD OF THIS TO
ONE PERSON, AND AS I SAY, IF
YOU NEEDED ANY FURTHER PROOF
OF THIS THE EFFECT OF THIS
SUB9 9, -- SUB9, IT DURING THE
TIME THAT THE APPELLANT SAYS
WE HAVE VACATED OUR SUB-9 AND
THE LICENSE THAT WE HAVE FOR
THAT TWO OR THREE-YEAR PERIOD,
WHATEVER IT HAS BEEN.
NOBODY ELSE HAS QUALIFIED FOR
THAT MONEY MAKING THING.
IT IS A MONEY MAKER.
YOU HAVE GOT THE RIGHT, IF YOU
SELL THOROUGHBREDS AND YOU
HAVE GOT A PERMANENT SALES
FACILITY, AND ONCE A YEAR YOU
CONDUCT A RACE OF
THOROUGHBREDS.
WHAT DO YOU SAY ABOUT THEIR
ILLUSION TO THE RECORD, AND
THAT THERE IS ANOTHER ENTITY
OUT THERE THAT, IF THEY CHOOSE
TO, THEY COULD BE --
I THINK THEY WOULD HAVE
TOLD US BY NOW, IN THIS
COURTROOM TODAY, IF THEY HAD
QUALIFIED FOR THAT LICENSE.
WELL, THAT -- IF THEY HAD
ATTEMPTED TO.
THAT THEY COULD DO IT.
THAT IS THAT THE POTENTIAL FOR
THAT, IF SOMEBODY WANTS TO
INVEST THE FUNDS TO DO THAT,
THAT THEY COULD COME UNDER
THIS PROVISION.
WHY ISN'T THAT ENOUGH --
THE DECISIONS OF THIS COURT
SAY, AND I BELIEVE IT IS THE
HIALEAH RACE COURSE DECISION,
SAYS THAT THIS IS SUBJECT TO A
REALITY, A REALITY TEST.
IT IS NOT A THEORETICAL
POSSIBILITY.
IT IS A SUBSTANTIAL,
REASONABLE POSSIBILITY OF
SOMEONE ENTERING INTO THIS.
THE RECORD SHOWS THAT THIS LAW
WAS CREATED FOR BUT ONE PERSON,
FOR BUT ONE ENTITY.
ONE ENTITY OVER THE COURSE OF
TEN YEARS, YOUR HONORS, SINCE
1990, TO 1999, HAS ENJOYED
THIS, AND HAS APPLIED FOR IT,
AND FOR ALL THAT APPEARS,
NOBODY ELSE HAS ANY POTENTIAL
REALISTIC QUALIFICATION THAT
WOULD STAND UP AGAINST THE
TIEBREAKER PROVISION, WHICH
THESE PEOPLE HAVE, BY REASON
OF THEIR HAVING HELD THE
LICENSE FOR AS LONG AS THEY
HAVE.
SO WE SAY --
IS THE TIEBREAKER PROVISION
CRUCIAL?
IT CERTAINLY IS DECISIVE.
I DON'T THINK IT IS CRUCIAL.
IT CERTAINLY IS DECISIVE.
IT CERTAINLY IS DECISIVE.
IT WAS ENACTED IN ONE PACKAGE,
FOR THE CLAIM BENEFIT OF ONE
POTENTIAL LICENSEE, AND THAT
IS WHAT HAPPENED, AND UNLESS
YOU WANT TO GET DOWN INTO
THEORETICAL POSSIBILITIES,
THAT IS EXACTLY WHAT THEY
ACCOMPLISHED.
IF THIS OTHER ENTITY THAT
THEY HAVE CITED WERE TO INVEST
THE FUNDS, NOW, TO COME UNDER
THESE SECTIONS, WOULD THE
TIEBREAKER PROVISION EXCLUDE
THEM?
THEY CITED THE OTHER --
I DON'T SEE HOW IT WOULD
EXCLUDE THEM, IF THEY QUALIFY.
THAT IS WHY I SAY IT IS
DECISIVE BUT NOT INDISPENSIBLE,
TO MY ANALYSIS.
SINCE THEY HAVEN'T APPLIED,
AND CONSIDER THE REWARDS OF
APPLYING.
YOU GET ALL THESE RACING DATES
IN WHICH YOU ARE, IN EFFECT,
OPERATING A BOOKING OPERATION,
ATTACHED TO A HORSE FARM.
ALL THEY HAVE TO DO IS BUILD A
PERMANENT HORSE FARM WITH
PERMANENT SALES FACILITY, AND
THEN THEY GET, FOR ALL THESE
DATES WHICH THEY HAVE BEEN
EXPANDED BY SUBSEQUENT
AMENDMENT TO THIS, TO RUN, IN
EFFECT, A BOOKMAKING OPERATION,
AS DEFINED BY FLORIDA STATUTES,
WHICH IS THE SELLING OF THE
OPPORTUNITY TO BET ON OFF SITE
EVENTS, EVENTS HUNDREDS OF
MILES AWAY, USING ODDS OUT OF
WHICH THE PERSON RUNNING THE
DEAL WILL MAKE A HANDSOME
PROFIT.
WHAT IS THE PLEADING STATUS
OF THE OTHER PROCEEDING NOW,
UNDER THE NEW STATUTE?
IT IS A WAITING THIS
COURT'S DECISION.
IN OTHER WORDS IT IS AT
ISSUE?
YES.
NOW, IF YOU NEED FURTHER
EFFORT, INDICATION OF WHO IS
AT INTEREST HERE, BESIDES THIS
APPELLANT, WHERE IS THE STATE
OF FLORIDA?
THE STATE OF FLORIDA NOMINALLY
JOINED IN THE NOTICE OF APPEAL
FILED IN THE CIRCUIT COURT.
FILED NO BRIEF IN THE
APPELLATE COURT.
DID NOT JOIN IN ANYBODY'S
BRIEF.
FILED NO APPEARANCE IN THE --
ALTHOUGH OUR BRIEFS AND THEIR
BRIEFS, IN THE DISTRICT COURT
OF APPEAL, DULY HONORED THE
FLORIDA APPELLATE RULES, WHICH
SAY ANYBODY THAT JOINS IN AN
APPEAL IS AN APPELLANT, AND
ANYBODY THAT WAS A PARTY IN
THE COURT BELOW BUT DIDN'T
JOIN IN THE APPEAL IS A PARTY
APPELLEE, AND THEY DIDN'T
APPEAR IN THE DISTRICT COURT
OF APPEAL.
THEY WERE RECOGNIZED AS A
PARTY APPELLANT IN THE STYLE
OF THE CASE AND THE DISTRICT
COURT OF APPEAL.
THIS IS THE STATE DIVISION OF
PARI-MUTUEL WAGERING.
RECOGNIZED AS AN APPELLANT.
WITH NO APPEARANCE BY COUNSEL,
NO BRIEF.
COST NOTICE OF APPEAL BY THE
APPELLANT TO THIS COURT, THEY
DROP THEM OUT OF THE APPEAL?
THEY DROP THEM OFF THE STYLE
OF THE CASE.
WE RECOGNIZE IT.
WE PUT ET AL IN OUR BRIEF, IN
THE CAPTION OF THE CASE, AMONG
THE AND LEASE, BECAUSE, UNDER
OPERATION OF THE RULE, THE
STATE IS A PARTY WITH US,
BECAUSE THEY DID NOT APPEAL TO
THIS COURT, AND WE HAVE
CONTINUED TO SERVE COPIES OF
OUR BRIEFS, AS HAVE THEY, ON
THE ATTORNEY GENERAL, WHO IS
NOT HERE, WHO HAS MADE NO
APPEARANCE HERE THIS MORNING,
AT LEAST THEY HAVEN'T SIGNED
IN.
I DON'T KNOW IF THEY ARE IN
THE AUDIENCE.
WHAT BETTER INDICATION COULD
YOU HAVE, YOUR HONORS, THAT
THIS IS LAW IS --
WHAT DOES THAT MEAN?
SIR?
MA'AM?
WHAT DOES THAT MEAN, THE
FACT THAT THEY DIDN'T FILE --
I DON'T KNOW, BUT I THINK
THE REASONABLE INFERENCE IS
THAT THIS LAW IS FOR THE
PURPOSE, WAS CREATED FOR THE
PURPOSE OF BENEFITTING THIS
LICENSEE.
AND THERE IS NO EVIDENT STATE
INTEREST IN FIGHTING THIS
THING THROUGH COURT, AND THE
ATTORNEY GENERAL DOES NOT
ENDORSE EITHER THE QUESTION OF
MOOTNESS, AS PRESENTED HERE,
OR THE ASSERTED ERROR IN THE
DISTRICT COURT OF APPEAL AND
THE CIRCUIT COURT.
THE ATTORNEY GENERAL IS
SILENT.
WE THINK THIS CASE MERITS A
FULL AFFIRMANCE.
THANK YOU.
THANK YOU, MR. SMITH.
REBUTTAL?
WITH ALL DUE DEFERENCE TO
MR. SMITH, WHO WASN'T THERE,
THE ATTORNEY GENERAL WAS
PRESENT IN THE TRIAL COURT.
THE ATTORNEY GENERAL WAS
PRESENT AT THE STAY HEARING.
THE ATTORNEY GENERAL FILED A
PLEADING JOINING OUR BRIEF IN
THE FIRST DISTRICT COURT OF
APPEAL, AND THE ATTORNEY
GENERAL ATTENDED ORAL ARGUMENT,
SO THE STATE WAS PRESENT ALL
THE TIME THIS CASE WAS PENDING,
THROUGH THE FIRST DISTRICT
COURT OF APPEAL, AND DID AGREE
WITH THE MOOTNESS ARGUMENT,
WHEN WE FILED THAT.
THEY JOINED IN THAT.
SO THE FACT THAT THE ATTORNEY
GENERAL IS NOT HERE ON THIS
APPEAL APPARENTLY MEANS THEY
THINK THE WHOLE QUESTION IS
DEAD AND THEY HAVE ISSUED A
LICENSE UNDER THE NEW STATUTE.
WE ARE SPECULATING ON WHY
HE IS NOT HERE OR WHY HE IS
HERE OR WHY HE IS NOT HERE.
WOULD YOU ADDRESS GENERAL LAW
AS OPPOSED TO SPECIAL LAW.
WHY ISN'T THIS A SPECIAL LAW?
OKAY.
A SPECIAL LAW IS ONE THAT HAS
SOME LIMITATION.
REGIONALLY, TIME FRAME,
SOMETHING THAT MAKES IT APPLY
TO ONLY ONE PLACE OR ONE
ENTITY.
AND AN EXAMPLE IS THE CLASSIC
MILE CASE, WHERE THEY PASSED A
STATUTE THAT SAID, IF YOU HOLD,
IF ANY COUNTY, IN WHICH YOU
HOLD THESE TWO PERMITS,
NEITHER ONE OF THEM HAD BEEN
USED BY 1-1-87, AND THERE IS,
ALSO, A HIALEAH JAI ALAI
PERMIT, THEN YOU ARE ELIGIBLE
FOR THIS.
ALL THE PARTIES AGREED.
THAT DESCRIBED MARION COUNTY,
AND THERE WAS NO REFERENDUM.
BUT IT IS CORRECT THERE CAN
ONLY BE ONE OF THESE PERMITS.
IT IS CORRECT THERE CAN
ONLY BE ONE OF THESE, AND I
CAN'T SEE THAT, WHEN YOU --
DOESN'T THAT CALL INTO
QUESTION, IN AND OF ITSELF --
TREATMENT IT DOES,
MR. JUSTICE.
-- IT SEEMS TO ME IT DOES,
MR. JUSTICE.
THE LEGISLATURE HAS, IN ITS
LATEST PRONOUNCEMENT, SAID
THERE CAN BE ONLY ONE OF THESE
LICENSES AND HAS SET UP THE
CRITERIA, SO TO -- THE NOTION
THAT, OH, YOU CAN PICK AND
CHOOSE WHICH ONE YOU WANT
DOESN'T APPLY, UNDER THE LAW,
AS I KNOW IT.
BUT --
IF THE WHOLE POINT -- I
MEAN IT SEEMS TO ME, IN THE
BEGINNING OF THE STATUTE, AT
LEAST IN 6308, THEY TALK ABOUT
WANTING TO INCREASE THE
ACTIVITY, I GUESS, IN THIS
PARTICULAR INDUSTRY.
WHY ISN'T -- WHY NOT ISSUE TWO
OR THREE OR FOUR LICENSES, IF
THAT IS THE PURPOSE, AS
OPPOSED TO ONE LICENSE?
WELL, I THINK THERE IS
ALWAYS THE CONSIDERATION OF
WHAT IT TAKES TO GET STARTED
ON SOMETHING LIKE THIS, AND IN
ORDER TO ATTRACT ENTITIES TO
UNDERTAKE THE EXPENSE, THE
SET-UP OF THE TRACK AND TO SET
UP THE SALES FACILITY AND TO
MEET ALL OF THE CRITERIA, THAT
THERE HAVE TO BE SOME SCHRUS I
HAVEITY, AND THE COURTS --
EX-INCLUDES I HAVEITY, AND THE
-- EXCLUSIVITY, AND THE COURTS
HAVE NEVER --
DO WE HAVE ANY HISTORY OF
THE LEGISLATURE PASSING ANY
SPECIFIC KIND OF PARI-MUTUEL
BETTING THAT CAN BE DONE, AND
SETTING THAT WE ARE GOING TO
DO THIS BY GENERAL LAW, BUT WE
ARE ONLY GOING TO LET ONE
PERSON OR ONE ENTITY HAVE IT?
THEY HAVE GFER NEVER DONE
-- THEY HAVE NEVER DONE, WITH
REGARD TO HAVING ONLY ONE
ENTITY THROUGHOUT THE STATE,
BUT THEY HAVE SAID IF YOU ARE
IN A REGION, YOU CAN ONLY HAVE
ONE WITHIN THIS PARTICULAR
AREA, AND THAT HAS BEEN UPHELD
TIME AND TIME AGAIN, AND THEY
WEREN'T SPECIAL LAWS, JUST
CRITERIA THAT ANYONE COULD
APPLY IN THE FUTURE.
WHAT IF THERE WAS A
COMPETENT FACILITY FOR OFF
TRACK BETTING?
IT IS -- I DON'T KNOW THAT
THERE IS -- I DON'T
UNDERSTAND.
YOU SAID SOMETHING ABOUT IT
TAKES AN AWFUL LOT TO BE ONE
OF THESE.
YOU HAVE TO HAVE A SALES
FACILITY, AND I JUST WANTED TO
TRY TO SEE IF I COULD
UNDERSTAND WHAT HAVING A SALES
FACILITY WOULD HAVE TO DO WITH
THE --
IT SHOWS, IN THIS
PARTICULAR CASE AT LEAST, AN
INTEREST IN THE THOROUGHBRED
HORSE RACING AND SALES
INDUSTRY, SO THAT, AND THIS IS
WHAT THEY SAY IN THE PREFACE
TO THE NEW STATUTE, IS THAT
THEY RECOGNIZE THE ECONOMIC
IMPORTANCE OF THE THOROUGHBRED
BREEDING INDUSTRY.
ITS POSITIVE IMPACT ON TOURISM,
AND THE IMPORTANCE OF A
PERMANENT THOROUGHBRED SALES
FACILITY AS A KEY FOCAL POINT
FOR THE ACTIVITIES OF THE
INDUSTRY, AND THEREFORE THERE
IS ONE LIMITED LICENSE.
I JUST WANTED TO, IF I MIGHT
--
CAN YOU CLOSURE ARGUMENT.
OKAY.
WE ARE NOT JUST A HORSE FARM.
WE ARE AN AGRICULTURAL
MARKETING COOPERATIVE.
WE WITH ARE NOT JUST ONE
BREEDER.
WE ARE NOT JUST ONE LITTLE
PODUNK GUY.
THERE IS AN AREA WHERE THERE
IS AN INTEREST BY HORSE OWNERS,
HORSE BREEDERS, AND OTHERS IN
THE FIELD, AND THE INTERTRACK
WAGERING BRINGS IN THOSE FOLKS
WHO ARE INTERESTED IN BUYING,
AND THEN IT GIVES THEM
ENTERTAINMENT IN THE PROCESS,
AND HORSE RACING HAS BEEN
AROUND FOR AS LONG AS I CAN
RECALL, AND WAY BACK IN THE
PRIOR HISTORY, BUT I MEAN, I
DON'T THINK THERE IS ANY
REASON THAT ANYBODY ELSE IN
THE FUTURE COULD NOT APPLY FOR
THIS LICENSE, AND I DON'T
THINK, AS A FINAL THING, THAT
THERE IS ANY REASON FOR THIS
COURT TO GET INTO THE
CONSTITUTIONAL QUESTION,
BECAUSE THE ISSUE IS SURELY
MOOT, AND THE -- THEY SAID
THERE WAS ONGOING LITIGATION.
THE ADMINISTRATIVE PROCEEDINGS
WERE DENIED.
THE LICENSE WAS UPHELD, AND
THEY DID NOT APPEAL TO THE
FIRST DCA.
THANK YOU VERY MUCH.
COUNSEL.