NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
TREASURE CHEST POKER, LLC, )
)
Appellant, )
)
v. ) Case No. 2D15-3508
)
DEPARTMENT OF BUSINESS AND )
PROFESSIONAL REGULATION, )
DIVISION OF ALCOHOLIC )
BEVERAGES AND TOBACCO, )
)
Appellee. )
________________________________ )
Opinion filed June 30, 2017.
Appeal from the Circuit Court for
Pinellas County; Anthony Rondolino,
Judge.
William A. Van Nortwick, Jr., of Akerman
LLP, Jacksonville; Diane G. DeWolf of
Akerman LLP, Tallahassee; and G.
Andrew Gracy of Peebles & Gracy, P.A.,
Dunedin, for Appellant.
William N. Spicola, Magdalena
Ozarowski, Megan Kachur, and Dwight
O. Slater, Tallahassee, for Appellee.
KELLY, Judge.
Treasure Chest Poker, LLC, filed this action for declaratory judgment
against the Florida Department of Business and Professional Regulation, Division of
Alcoholic Beverages and Tobacco, seeking a declaration that the Department had
improperly given notices of noncompliance to establishments that were Treasure
Chest's customers.1 The trial court entered a final declaratory judgment adverse to
Treasure Chest, and it appeals. We do not reach the merits of this appeal because we
conclude the trial court lacked jurisdiction to enter a declaratory judgment.2
Accordingly, we reverse the judgment and remand with directions to dismiss the
complaint with prejudice.
Treasure Chest operates free poker games in businesses regulated by the
Department's Division of Alcoholic Beverages. The Department issued notices to
Treasure Chest's customers stating it had received a complaint that Treasure Chest
was conducting "games of chance" on their premises. It further advised that "it is a
violation of Chapter 849, Florida Statutes, to allow or permit gambling implements or
gambling activities on your licensed premises." The notices also state "[n]o
administrative or criminal charges are being filed at this time." Treasure Chest alleges
1
Chapter 86, Florida Statutes, authorizes courts to enter declaratory
judgments. See §§ 86.011-111, Fla. Stat. (2014).
2
The Department moved to dismiss Treasure Chest's complaint for failure
to state a cause of action for declaratory relief. The trial court denied the motion. The
Department did not raise the denial of its motion as an issue on appeal. However,
failure to state a proper claim for declaratory relief is jurisdictional. Santa Rosa County
v. Admin. Comm'n, Div. of Admin. Hearings,
661 So. 2d 1190, 1192-93 (Fla. 1995);
Bryant v. Gray,
70 So. 2d 581, 584-85 (Fla. 1954); Colby v. Colby,
120 So. 2d 797, 799-
800 (Fla. 2d DCA 1960). Even though the Department did not question the trial court's
jurisdiction, we are nevertheless required to address the issue. See Polk County v.
Sofka,
702 So. 2d 1243, 1245 (Fla. 1997); 84 Lumber Co. v. Cooper,
656 So. 2d 1297,
1299 (Fla. 2d DCA 1994).
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by issuing these notices the Department "has placed [Treasure Chest] and its
customers in fear that they will be criminally or administratively prosecuted for engaging
in activities that are, in fact, legal." The complaint asked the court to declare that
Treasure Chest's poker games did not violate chapter 849 "or any other law" and
accordingly, the Department had no authority to issue the notices of noncompliance.
We conclude Treasure Chest's complaint was insufficient to invoke the jurisdiction of the
circuit court to enter a declaratory judgment.
The standard for determining the sufficiency of a declaratory judgment
complaint is set forth in May v. Holley,
59 So. 2d 636 (Fla. 1952):
Before any proceeding for declaratory relief should be
entertained it should be clearly made to appear that there is
a bona fide, actual, present practical need for the
declaration; that the declaration should deal with a present,
ascertained or ascertainable state of facts or present
controversy as to a state of facts; that some immunity,
power, privilege or right of the complaining party is
dependent upon the facts or the law applicable to the facts;
that there is some person or persons who have, or
reasonably may have an actual, present, adverse and
antagonistic interest in the subject matter, either in fact or
law; that the antagonistic and adverse interests are all before
the court by proper process or class representation and that
the relief sought is not merely the giving of legal advice by
the courts or the answer to questions propounded from
curiosity.
Id. at 639. "Thus, absent a bona fide need for a declaration based on present,
ascertainable facts, the circuit court lacks jurisdiction to render declaratory relief." Santa
Rosa County v. Admin. Comm'n, Div. of Admin. Hearings,
661 So. 2d 1190, 1193 (Fla.
1995); see also Bryant v. Gray,
70 So. 2d 581, 584-85 (Fla. 1954); Grable v.
Hillsborough Cty. Port Auth.,
132 So. 2d 423, 425-26 (Fla. 2d DCA 1961); Colby v.
Colby,
120 So. 2d 797, 799-800 (Fla. 2d DCA 1960). Courts will not determine the
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construction or validity of a statute or ordinance in the absence of a justiciable
controversy. Ervin v. City of North Miami Beach,
66 So. 2d 235, 236-37 (Fla. 1953).
Where the statute or ordinance at issue is criminal, this court has held that generally,
unless someone is charged with violating the statute or prosecution is imminent, a
declaratory judgment action to determine the construction or validity of a criminal statute
lacks a justiciable controversy. El Faison Dorado, Inc. v. Hillsborough County,
483 So.
2d 518, 519 (Fla. 2d DCA 1986); Duran v. Wells,
307 So. 2d 259, 261-62 (Fla. 2d DCA
1975).
Our decision in El Faison is instructive. The appellant was a club that
brought an action for declaratory relief as to the constitutionality of a county ordinance
prohibiting the exhibition of animals fighting.
483 So. 2d at 519. Explaining why the
case did not present a justiciable controversy we stated:
The complaint merely says that "[the Club] and its members
could perhaps be subject to future arrests and convictions if
they continue to engage in the sport of cockfighting." There
is no allegation and no evidence in the record that the Club,
a corporation, has ever been threatened with prosecution
under the ordinance in question. It is apparent from a
reading of the complaint . . . that the Club is really concerned
about the activities of its individual members and is seeking
an advisory decree for their benefit.
Id. We concluded that because the Club had failed to allege or demonstrate that it
faced an imminent threat of prosecution for violating the ordinance it was not entitled to
declaratory relief.
Id. at 520.
With these principles in mind, we conclude that Treasure Chest's
allegations were insufficient to entitle it to declaratory relief. Treasure Chest did not
allege that it faces an imminent threat of administrative action or criminal prosecution.
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Its complaint alleges only that the notices have "placed it in fear" that it will be criminally
or administratively prosecuted. At best, Treasure Chest has asserted a "speculative
fear of harm that may possibly occur at some time in the indefinite future." State v. Fla.
Consumer Action Network,
830 So. 2d 148, 152 (Fla. 1st DCA 2002). Further, even if
the Department's action in issuing these notices could somehow be construed to have
created a justiciable controversy, the controversy would have been between Treasure
Chest's customers and the Department. See
Bryant, 70 So. 2d at 584-85;
Grable, 132
So. 2d at 425-26. Treasure Chest's complaint acknowledges that only its customers are
regulated by the Department. Thus, it does not face even the possibility of
"administrative prosecution" from the Department. As to the possibility of criminal
prosecution, the Department is not the entity charged with enforcing chapter 849. So, to
the extent Treasure Chest alleges it fears the possibility of prosecution, it has sought
relief against the wrong entity.
Treasure Chest's complaint did not establish it was entitled to a
declaratory judgment. Accordingly, the trial court did not have jurisdiction, and it should
have dismissed the action without addressing the merits. We reverse the judgment and
remand with directions to the trial court to dismiss Treasure Chest's complaint with
prejudice.
Judgment reversed; remanded with directions.
BLACK and BADALAMENTI, JJ., Concur.
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