
    STATE of Florida, on the relation of TOURIST ATTRACTIONS, INC., Relator, v. Robert C. LECHNER, Chairman, Judge Louie Bandel, Jack Fiveash, James L. Lee, Sr., and Martin Segal, as and composing the members of the Florida State Racing Commission, and Florida State Racing Commission, Respondents.
    No. 35676.
    Supreme Court of Florida.
    Nov. 2, 1966.
    Sibley, Giblin & Levenson and Marion E. Sibley, Miami Beach, for relator.
    Earl Faircloth, Atty. Gen., Robert A. Chastain, Asst. Atty. Gen., and Judson A. Samuels, Hollywood, for respondents.
   CALDWELL, Justice.

Relator is the owner of a permit and license authorizing it to conduct harness racing and, in connection therewith, to operate pari-mutuel pools. In June of 1966 the relator filed its application with the Florida State Racing Commission, the members of which are respondents herein, seeking the Commission’s approval of relator’s annual license to conduct harness racing at relator’s leased location, Tropical Park, on certain designated days and dates. By its order dated August 22, 1966, the Commission denied the application on the following grounds:

“This Commission is of the opinion that the Applicant is unable at this time to properly conduct harness racing at night in the leased premises wherein thoroughbred horses are stabled and racing on the same dates in the daytime because of the lack of sufficient of (sic) facilities and safeguards as the public interest demands and requires in respect of pari-mutuels operations.”

Relator contends that, under Florida Statute § 550.07, F.S.A. no discretion is vested in the Racing Commission to deny its application ; that the Racing Commission has no authority to reject relator’s application on the ground that the facilities “at this time” are insufficient for harness racing; that this particular question was resolved by the Supreme Court in State ex rel. Hollywood Jockey Club v. Stein, 129 Fla. 777, 176 So. 849 (1937), wherein on similar facts this court awarded peremptory writ of mandamus.

In the Hollywood Jockey Club case, supra, this court held :

“The statutes, chapter 14832, Acts 1931, as amended by chapter 17276, Acts 1935, [predecessor of F.S. § 550.07] do not contemplate that it should be necessary for one who has been granted a permit which has been ratified by the voters of a county to conduct a race meeting to have a completed race track and plant ready for operation at the time he applies for and is granted a license and the fixing of dates. It was not the purpose of the Legislature to require one to construct a race track or racing plant before being granted a permit to conduct the same. It was required in that regard that the location to be occupied by the race track, or racing plant, should be definitely stated. Under the plain language of subdivision 6 of section 2 and sections 6 and 7 of chapter 17276, Acts of 1935, it is the duty of the Racing Commission to grant to the relator a license to conduct racing, and, upon the posting of the required bond, under the provisions of section 14 of chapter 14832, Acts of 1931, it is the duty of the Racing Commission to deliver the license to the person, firm, or corporation whose permit has been granted by the said commission and approved by the voters in an election held for that purpose.
'A******
“Under the showing made in the writ, and which is admitted by the return, the permit holder in this case will not be ready to operate its track before the 1st of February, 1938, because it will not have a completed racing plant before that time. But, under the law, it is entitled to have its quota of dates, and it can only have that quota of days, as is shown by the pleadings here, by the same being fixed from and after the 1st day of February, 1938.”

The controlling statutory law has remained without material change since the Hollywood Jockey Club decision. Florida Statute § 550.07, F.S.A. provides in pertinent part as follows:

“After a permit has been granted by the commission, and after the same has been ratified and approved by the majority of the electors participating in such election of the county designated therein, the racing commission shall grant to the lawful holder of such permit, subject to the conditions hereof, a license to conduct racing under this chapter, and fix annually the time, place and number of days during which racing may be conducted by such permit holder at the location fixed in said permit and ratified in said election. After the first license has been issued to the holder of a ratified permit for racing in any county, all subsequent annual applications for a license by said ratified permit holder shall be accompanied by proof in such form as the commission may require, that the ratified permit holder still possesses all the qualifications prescribed by this chapter, and that the permit has not been recalled at a later election held in such county as provided for in § 550.18. * * * ”

But respondents contend mandamus will not lie because questions of fact and a discretionary duty are involved in the issuance of a license. The authorities cited by respondents do not support that position. While it is true the Commission has discretion in the assignment of dates and in the regulation of track operations, the Commission may not deny racing days to the holder of a valid permit upon presentation of a valid application. Relator’s operations at the leased premises as well as its permanent location are, as of course, subject to regulation by the Commission.

Respondents further insist relator’s application for racing dates at its leased location does not meet the distance requirements prescribed by Florida Statute § 550.-37(7), which provides:

“Such permittee and licensee upon the approval of its application by the racing commission pursuant to the provisions of this act may conduct harness racing at the facilities or plant leased by it from any horse race permittee or licensee in any county within the authorized area designated in this act not more than forty miles from the applicanfs designated location, provided the said horse race per-mittee has a valid permit and license issued to it under the provisions of chapter 550 * * (Emphasis supplied)

Respondents urge the distance between the two locations must be measured by the most direct land road route and that, in this case, when so measured, the distance between the two points is slightly in excess of forty miles. Relator, to the contrary, asserts the distance between the locations must be measured in a straight line and, measured in that manner, is less than forty miles.

We think this question was resolved by the decisions of State ex rel. Fronton Exhibition Company v. Stein and State ex rel. Fronton Exhibition Company v. Haggard wherein the method of measuring such mileage under a statute not specifying either road or air miles was fixed as a straight line as required in Florida Statute § 550.05.

For the reason stated respondents’ Motion to Quash the Alternative Writ is denied, the return is held insufficient and the peremptory writ is awarded.

It is so ordered.

THORNAL, C. J., and THOMAS and DREW, JJ., concur.

ERVIN, J., concurs with opinion.

ERVIN, Justice

(concurring):

I concur in the opinion prepared by Justice CALDWELL. However, in addition to what is said in the foregoing opinion, I think we should point out that the 1963 and 1965 Legislatures removed from the Florida Racing Commission any discretion to disapprove an annual license to Relator to conduct harness racing at the leased location, viz., Tropical Park, on designated dates. Ch. 63-130 added F.S. § 550.37, F.S.A., which provides that a dog track, horse track or harness track permittee and licensee shall be granted the right to conduct harness racing at a location within any county where two or more elections have been held which favored operation of parimutuel pools within the county at horse and dog tracks, provided the applicant for two years immediately preceding its application had an average daily pari-mutuel pool of less than $20,000.00 for its seasonal operation. Thereafter in said chapter subsections (7), (8) and (9) read as follows:

“(7) Such permittee and licensee upon the approval of its application by the racing commission pursuant to the provisions of this act may conduct harness racing at the facilities or plant leased by it from any horse race permittee or licensee in any county within the authorized area designated in this act not more than forty miles from the applicant’s designated location, provided the said horse race permittee has a valid permit and license issued to it under the provisions of chapter 550, and said applicant-permittee and licensee may conduct such harness race meetings at said leased premises provided, that said permittee and licensee may thereafter construct its own facilities and its own plant at the location designated in its approved application. Such applicant-permittee and licensee may, pending the construction of its permanent facilities, operate at said leased premises and may thereafter divide its season of racing between its leased location and its permanent loca-' tion so long as said locations remain within the authorized county or counties as elsewhere herein defined. If said per-mittee’s season of racing is divided as aforesaid, the limitation of seventy-five miles between harness track locations shall not apply. The seventy-five mile limitation between the harness tracks hereinabove provided in regard to other permittees shall be measured from the location designated in said permittee’s application to the racing commission.
“Nothing herein contained shall authorize the permittee and licensee to operate more than ninety racing days.
“Provided no such permit or harness racing may be moved to or permitted in any county having two or more horse track permits.
“(8) The distance provisions contained in § 550.02 and 550.05 shall not be applicable to any harness race permittee who is required by the terms of this act to conduct harness racing at night only, nor shall § 550.17 be applicable to any permit-tee whose permit is transferred under the provisions of this section.
“(9) The provisions of chapter 550 as the same pertain to horse racing shall be applicable to harness racing except those provisions which are inconsistent herewith, and where the provisions of chapter 550, are by implication inconsistent with or are, in fact, in conflict with the provisions of this act, then this act shall govern harness race track permittees or licensees, and harness racing.”

The 1965 Legislature enacted Chapter 65-530, adding F.S. § 550.371, F.S.A., which is couched in mandatory language. This language repealed conflicting language in Chapter 63-130, primarily the prohibition against harness racing in any county having two or more horse track permits. It reads as follows:

“550.371 Harness racing; authority to conduct on. leased and permanent locations in certain counties. — All holders of harness racing permits who are authorized by law to divide their season of racing between a leased location and their permanent location shall have the right and privilege in accomplishing the division of their racing season to lease facilities in a county having two (2) or more horse tracks operating under valid permits, and to conduct at such leased facilities harness racing for not more than forty-five per cent (45%) of their allowable racing days.”

It is quite apparent these statutes, and particularly the portions emphasized, apply to Relator. Relator had authority from F.S. § 550.37(7), F.S.A., to make provision to divide its racing season between its permanent location and a leased location. When Relator leased Tropical Park to achieve the division of its racing season it satisfied F.S. § 550.371, F.S.A. Thereby, the Legislature granted Relator the right to conduct harness racing at the leased location, Tropical Park. It follows we have no alternative except to issue the peremptory writ.

DREW, J., concurs. 
      
      . 144 Fla. 387, 198 So. 82 (1940).
     
      
      . Fla., 67 So.2d 205 (1953).
     