WEST FLAGLER 

ASSOCIATES, LTD.,

Appellant,

v.

FLORIDA DEPARTMENT OF 

BUSINESS AND 

PROFESSIONAL 

REGULATION, DIVISION OF 

PARI-MUTUEL WAGERING,

Appellee.

___________________________/

IN THE DISTRICT COURT OF APPEAL

FIRST DISTRICT, STATE OF FLORIDA

NOT FINAL UNTIL TIME EXPIRES TO 

FILE MOTION FOR REHEARING AND 

DISPOSITION THEREOF IF FILED

CASE NO. 1D16-2374

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 
2

Wagering, 139 So. 3d 419, 420 (Fla. 1st DCA 2014). Specifically, we address 

whether the Department of Business and Professional Regulation, Division of PariMutuel 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).
3

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.
4

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 
5

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 parimutuel 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 . . . 
6

.” § 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.