
    WEST FLAGLER ASSOCIATES, Ltd., a Florida limited partnership, Petitioner, v. DIVISION OF PARI-MUTUEL WAGERING et al., Respondents. WEST FLAGLER ASSOCIATES, Ltd., a Florida limited partnership, Relator, v. DIVISION OF PARI-MUTUEL WAGERING et al., Respondents. MIAMI BEACH KENNEL CLUB, INC., a Florida corporation, Relator, v. DEPARTMENT OF BUSINESS REGULATION et al., Respondents.
    Nos. 41165, 41164, 41278.
    Supreme Court of Florida.
    July 1, 1971.
    Rehearing Denied July 19, 1971.
    
      Eli H. Subin, Orlando, for West Flagler Associates, Ltd.
    Carl Timothy Hoffman, Miami, for Miami Beach Kennel Club, Inc.
    Robert L. Shevin, Atty. Gen., and Roger Foote and M. Stephen Turner, Asst. Attys. Gen., for Board of Business Regulation.
    Robert L. Hesse, Sarasota, for Division of Pari-Mutuel Wagering.
    George W. Wright, Jr., and Thomas S. Trantham, Jr., of Mershon, Sawyer, Johnston, Dunwody & Cole, Miami, and Bruce G. Davis, Tallahassee, for Biscayne Kennel Club, Inc.
   PER CURIAM.

By various consolidated petitions for certiorari, mandamus and prohibition, we have for our consideration the validity of the decision and order of the Board of Business Regulation dated June 21, 1971, awarding greyhound dog racing dates to Dade County tracks for the 1971-72 racing season.

Our jurisdiction under Fla.Const, art. V, § 4(2), F.S.A., is admittedly concurrent with that of the District Courts of Appeal under § 5(3). Normally we would transfer the cause to the appropriate district court, upon motion of a party or sua sponte. However, the present situation is anything but normal. Because the time element is so critical to these litigants, to the public and to the State of Florida for revenue, and because our jurisdiction here is discretionary, we accept jurisdiction in the public interest and for a speedy termination to this litigation. Rather than viewing this indulgence and concern of the Court as a precedent for emergency relief from this Court, however, the pari-mutuel industry should take note that emergencies of this sort will hereafter be viewed presumptively as having been caused by the dereliction of the parties in failing to pursue diligently the administrative procedures, or of the Board in not expeditiously completing its disposition of the matters before it, as the case may appear. This continuing “panic review” by the courts, within the inadequate time allowed for deliberation of such weighty matters, must cease.

West Flagler Associates, Ltd. (hereinafter Flagler), Biscayne Kennel Club, Inc. (hereinafter Biscayne), and Miami Beach Kennel Club, Inc. (hereinafter Miami Beach), filed applications for racing dates for the 1971-1972 greyhound racing season as follows:

Requested Dates

Miami Beach (an alternative date) 9-3-71 thru 1-3-72

Flagler 5-1-72 thru 9-4-72

Biscayne (as amended) 5-5-72 thru 9-2-72

On May 14, 1971, a hearing was held before the Division of Pari-Mutuel Wagering (now abolished and its duties assumed by the Board of Business Regulation) to determine what racing dates would be allocated to which tracks. The Division entered its order awarding the following dates:

"Division" Allocations

Miami Beach (as requested) 9-3-71 thru 1-3-72

Flagler 1-4-72 thru 5-4-72

Biscayne 5-5-72 thru 9-4-72

On May 24, 1971, Miami Beach received its license to begin operations as of September 3, 1971, paid its bond in the amount of $50,000 and began preparations for opening on September 3, 1971.

Flagler sought Supreme Court review of the Division’s order of May 14, 1971, but when the 1971 Legislature abolished the Division of Pari-Mutuel Wagering, this Court entered an order temporarily relinquishing jurisdiction to the Board of Business Regulation to review the order of the former Division.

Pursuant to this Court's said order of June 8, 1971, the Board of Business Regulation has reviewed the action of the former Division of Pari-Mutuel Wagering and by its order of June 21, 1971, has reached different conclusions and findings and has made new and different split date assignments of various racing dates to the Dade County greyhound tracks as follows:

Board Split-Date Awards

(Total "101 racing days, plus 4 charity days" each.)

Biscayne 9-3-7X thru 11-2-71; AND 5-5-72 thru 7-5-72

West Flagler 11-3-71 thru 1-3-72; AND 7-6-72 thru 9^1-72

Miami Beach 1-4-72 thru 5-4-72

This Court, having considered the briefs and record submitted herein and the oral arguments of the parties, is of the opinion that this order under review is correct in part and erroneous in part.

The Board of Business Regulation found that “The evidence presented failed to clearly establish whether Biscayne or Flagler is better able to meet the criteria set out in [State ex rel.] West Flagler Kennel Club v. Florida State Racing Commission, 74 So.2d 691 (Fla.1954), and West Flagler Associates, Ltd. v. Board of Business Regulation, 241 So.2d 369 (Fla.1970).” Therefore, the Board determined a realignment of dates which would take away from Miami Beach the “Fall” dates which had been granted to it and for which its license had already issued and had been acted upon by Miami Beach in the posting of bond and investment of monies and commitments in preparation for the opening of the first of the “new season” dates.

The Board then changed Miami Beach to the winter season (least remunerative) and split the fall season, which had already been awarded to Miami Beach, between Biscayne and Flagler (“comparable tracks”) and divided the summer dates between those two tracks, “so as to enable the Board to determine for the future which track is able to produce greater revenue and otherwise benefit the public and state under comparable circumstances.”

That portion of the Board’s order which belatedly deprived Miami Beach of its license to operate during the fall season is, under the particular facts and other related circumstances, contrary to the principles of law contained in West Flagler Associates v. Board of Business Regulation, 241 So.2d 369 (Fla.1970). There we said (p. 376):

“[T]he right to profitably enjoy the benefits of a license after it is already granted without undue prejudice to the licensee, or undue discrimination in favor of other licensees similarly situated, is likewise implied, if not expressed, in the statutes. State ex rel. West Flagler Amusement Co. v. Rose, et al., 122 Fla. 227, 165 So. 60 (1935).”

Moreover, it was there further pointed out that where not in conflict, it is appropriate “to allocate the dates of the Dade County tracks as nearly in accord with their original request as the circumstances may permit” (at p. 379).

Miami Beach was only a nominal party to this litigation until the revoking action of the Board by its order of June 21, 1971. The two other Dade tracks were engaged in a contest over their dates when Miami Beach found itself drawn into the fray by the Board’s said order determining to redivide all dates. This involved those already awarded without any real contest to Miami Beach. To call back those dates at this late stage would be to improperly deny such license under the particular facts and surrounding circumstances.

The petition of Miami Beach for writ of mandamus to compel the Board to rescind the order adversely affecting its said license is therefore hereby granted; a judgment in mandamus thereon is hereby entered and the award of racing dates to Miami Beach for the 1971-1972 season heretofore fixed by the former Division of Pari-Mutuel Wagering in its order of- May 14, 1971, are hereby restored to Miami Beach for September 3, 1971, through January 3, 1972.

As to the Board’s order regarding Flagler and Biscayne, the objective announced there seems to be a reasonable one, to obtain a comparison performance on alternate summer dates between the two relatively “comparable tracks,” as it found Biscayne and Flagler to be. This is in the exercise of a reasonable discretion on the part of the Board which we must uphold. It is in the instances of an abuse of discretion in making an unreasonable or unsupported award, or one contrary to those factors established in the determination of the fixing of dates, or an erroneous application of the law, or a departure from the essential requirements of the law, that a court is justified in disturbing administrative orders.

A comparison of performances as thus ordered between these two tracks, however, would be most fairly and best afforded by the awarding of straight summer seasons rather than so-called “split dates” applied by the Board.

It would further be expected as a reasonable extension of this plan of comparative results for the future, that upon the Board being then fortified with this information, it would, beginning with September 1973, equitably determine and award continuous dates to all Dade tracks. Due consideration must be given to all applicable factors, to the end that equitable continuous dates for each track may be determined and awarded by the Board each year.

Matinee dates are not reached by the former Division or the Board’s orders, nor is it revealed in this regard what the respective requests for matinees are. These may involve factual issues requiring testimony in which case the Rule prevents its consideration under extraordinary writs. Matinees should be awarded as requested where not inconsistent with the policy of the Board of Business Regulation.

So far as the evidence before the Board and the record here are concerned, there does not appear to be any substantial change from the situation as it was at the time these matters were before this Court only last year when we considered the matter at length in West Flagler Associates, supra, and there settled upon equitable dates based upon that evidence. The same dates (varied only for the 1972 calendar day differences) are now here approved for the 1971-1972 season as follows:

Approved Awards

Track Dates

Miami Beach 9-3-71 thru 1-3-72

Biscayne 1-4-72 thru 5-4-72

Flagler 5-5-72 thru 9-4-72

Accordingly, the petitions sought herein are granted to the extent outlined in this opinion and to implement the racing dates last above set forth.

It is further ordered because of the early impending start of the new racing season affected hereby and in the public interest and in the further interest of the state’s revenue which is involved, that the times for filing any petitions for rehearing are • shortened to Friday, July 9, 1971.

It is so ordered.

ERVIN, CARLTON, ADKINS, BOYD and McCAIN, JJ., concur.

DEKLE, J., concurs in part and dissents in part with opinion.

ROBERTS, C. J., concurs in part and dissents in part and concurs with DEKLE, J-

DEKLE, Justice

(concurring in part and dissenting in part).

I concur with the judgment of the Court Miami Beach, but I cannot accept the inequity to Biscayne in relegating it solely to the least desirable winter dates for dog racing in Dade County (when it was found by the Board to be comparable to Flagler) and extending to Flagler “the lion’s share” by giving to it the entire, lucrative summer dates, including the prime holidays of July 4 and Labor Day for 1972, without any special equity appearing or reason justifying such ’special treatment, at the expense of the other equally competent track.

We have held that in prescribing racing dates that the awarding authority is “subject only to the requirement that dates and days shall be apportioned on a fair and equitable basis."

The effect of our opinion is exactly to reverse the former Division’s awards and to give Flagler “Biscayne’s” dates! Even in the Board’s order under review here, Biscayne had been granted “half a loaf” in being awarded one-half of the summer as one of its “split-meets.” This opinion takes even this away and relegates Biscayne to a completely inequitable position. This violates not only my sense of justice but is contrary to the principles and criteria which this Court has announced to be followed in such matters.

The evidence amply supported making a division of dates which would now grant to each track some of the better and some of the less desirable dates available, for a more equitable result and one consonant with the applicable criteria.

The idea put forward by the Board of obtaining comparison performances by the comparable tracks of Flagler and Biscayne is an admirable suggestion but one which is fraught with the difficulties of obtaining a true and reliable statistical comparison which will attain the desired objectives of fair comparative figures on revenue produced, volume and attendance records, etc. Hardly any two periods of time, particularly in a community of varying activity like Dade County, are ever alike and therefore are not likely to afford a fair comparison. For example, it has just been announced that one of the largest national conventions will be held there in one of the years involved (1972) when the majority opinion has provided that summer period for Flagler. This will obviously be one of the largest attendance and betting results on record for a track, in light of the thousands of persons in the area who will be interested in recreation of this type, novel to many of them from other areas of the country and therefore likely to attract their participation. Of course an effort would probably be made to weigh such matters in the considerations of the 1973 summer dates of Biscayne, but this seems an insurmountable task which cannot afford a fair result because of the conjecture built into such a situation. This is all the more reason to grant equitable dates now, which the majority has indicated for the future, without awaiting two “test” seasons which cannot be helpful and will only present again the imponderables presented in this litigation — and which were presented in the litigation before that.

There are many other factors beside plant and management which would affect the “test” results which have been hit upon in the struggle for a solution to this perennial dilemma. These include the economic conditions prevailing in that particular year over the country, which we all know fluctuate from year to year; the type of weather in the season involved; the success or not of the tourist season in the area; and the omnipresence in Dade County of varying public events of interest and promotional activities there.

From this remainder of the opinion, I therefore respectfully dissent.

ROBERTS, C. J., concurs.

On Petitions for Rehearing

PER CURIAM.

The petitions for rehearing are denied.

ERVIN, CARLTON, ADKINS, BOYD and McCAIN, JJ., concur.

ROBERTS, C. J., dissents with opinion.

DEKLE, J., dissents and concurs with ROBERTS, C. J.

ROBERTS, Chief Justice

(dissenting).

I respectfully dissent and would grant the petition for rehearing as to Biscayne Kennel Club, Inc., for the reasons stated in the able dissenting opinion of Mr. Justice Dekle and for the further reason that in my opinion there was an unconstitutional discrimination against Biscayne in that it was denied due process of law as guaranteed in the fourteenth amendment to the Constitution of the United States. The administrative agency, after due hearing, determined:

“Findings of Fact
“1. The dates May 5 thru September 4, the so called summer season, are the most desirable dog racing dates as a minimum of pari-mutuel activity exists during this period; consequently, a track operating in this period would be able to produce a greater pari-mutuel handle with resulting greater revenue to the state.
“The dates September 3 thru January 3, the so called fall season, are the next most desirable dog racing dates as there is more pari-mutuel activity during this period than the summer season but less pari-mutuel activity than the so called winter season, January 4 thru May 4.
“The dates of January 4 thru May 4, the so called winter season, are the least desirable dog racing dates as there is more pari-mutuel activity during this period than at any other period'.
“2. Biscayne and Flagler are comparable tracks in size and capacity, ability to produce pari-mutuel handle and state revenue, ability to attract the public, plant facilities, quality of dogs, management and otherwise. (Emphasis supplied.)
(t * * * »

Thus it can be readily seen that Flagler and Biscayne are equals within a class and that there are three dog race seasons, first choice, second choice, and third choice. The majority opinion gave all of the first choice season to Flagler and awarded the third choice season to Biscayne, although in the order of the agency and the majority opinion the two tracks had been considered to be equals. Biscayne should have had half of the first choice season.

The fourteenth amendment to the Constitution of the United States provides:

“Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. (Em-hasis supplied)
<t * * * if

The majority opinion violates this clear command and I therefore respectfully dissent.

DEKLE, J., concurs. 
      
      . Fla.Laws 1971, eh. 71-98.
     
      
      . Biscayne Kennel Club, Inc. v. Board of Business Regulation, 239 So.2d 63 (1st DCA Fla.1970), dissenting opinion, approved in West Flagler Associates, Ltd. v. Board of Business Regulation, 241 So.2d 369 (Fla.1970).
     
      
      . Order of the former Division of May 21, 1971, provides, inter alia: “The Chairman stated prior to the granting of these dates that the matinees would be awarded at the Commission’s next meeting. Therefore, it would be appreciated if you [The order is addressed to the 3 tracks here.] would advise by return mail the number, dates and days-of-the-week on which you wish to conduct matinee and charity/scholarship performances, to insure your request appearing properly on the agenda.”
     
      
      . Florida Appellate Rule 4.5a (2), 32 F.S.A.
     
      
      . State ex rel. Broward County Kennel Club, Inc. v. Rose, 126 Fla. 288, 170 So. 710 (1936) ; quoted in West Flagler Associates, Ltd. v. Board of Business Regulation, 241 So.2d 369, 375 (Fla.1970).
     
      
      . West Flagler Associates, Ltd. v. Board of Business Regulation, 241 So.2d 369 (Fla.1970), and State ex rel. West Flagler Kennel Club, Inc. v. Florida State Racing Commission, 74 So.2d 691 Fla.1954).
     