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Lawsuit challenges broad scope of Internet café ban

An Internet café operator from Homestead, whose clientele are primarily migrant workers seeking computer time, is suing the state challenging the constitutionality of the Legislature’s ban on illegal slot machines.

The lawsuit filed in Miami Dade Circuit Court on behalf of Incredible Investments, LLC, owned by Consuelo Zapata, alleges that the Legislature effectively applied the ban to all computers when it defined illegal slot machines as any “system or network of devices” that may be used in a game of chance. The state effectively made every smart phone and computer an illegal device, the plaintiff argues.  Download Internet Cafe COMPLAINT

“They rushed to judgment and they took what they saw as a very specific problem and essentially criminalized everything,” said Justin Kaplan of the Miami law firm of Kluger, Kaplan, Silverman, Katzen & Levine which is representing Zapata.

The argument, crafted with the help of famed constitutional law attorney and Harvard professor Alan Dershowitz, is based on the assumption that the definition of illegal slot machines is now so broad that an illegal game could be potentially played on every computer. Under the law, the legislature’s own computers “the ones they used to draft this legislation, are illegal,’’ Kaplan said.

The case asks the court to throw out the law passed "in a frenzy fueled by distorted judgment in the wake of a scandal that included the lieutenant governor’s resignation." It argues that the lawsuit unlawfully prohibits commerce, violates free speech and due process and is overly broad and unworkably vague.

Legislators passed the law after a federal and state investigation into illegal gambling at Internet cafes affiliated with Allied Veterans of the World, a St. Augustine-based charity organization, led to 57 arrests people on racketeering and money-laundering charges. Lt. Gov. Jennifer Carroll, who had done consulting work for the veterans group, quickly resigned under pressure.

Since then, an estimated 200 operators of adult arcades, more than 1,000 Internet cafes and hundreds of Miami’s maquinitas have been forced to close down across Florida.

Because the law effectively gives the discretion to the state attorney to decide who to prosecute under the law, Miami Dade State Attorney Katherine Fernandez Rundle is the defendant in Zapata’s suit. The legal team, including Derschowitz who lives part time in Miami Beach, would not say who was paying their fees. 

Kaplan said the law’s uneven enforcement violates the constitutional protections of due process. For example, while Zapata is banned from operating her computers under the law, other companies that provide access to the Internet are not. For example, the state could argue that “Starbucks is running illegal slot machines because they provide their customer with a wi fi system that indirectly allows people to gain access to their phone to allow them to play games of chance that allow payouts,’’ he said.

A similar argument is being made by a coalition of owners of senior video arcades who are orchestrating a series of lawsuits across the state. They argue the prosecutors are engaging in selective enforcement of Florida’s sweeping new ban on video gambling and the law should also be applied to upscale arcade chains such as Dave & Busters and Boomers.

Two virtually identical circuit-court lawsuits have been filed so far: one in Broward County against the owners of the Dave & Buster’s chain, and one in Palm Beach County against the owners of the Boomers chain.

Both suits seek to have the arcades shut down as “gambling houses” and “public nuisances” until they get rid of games outlawed by the video-gambling statute passed by the Legislature in April.

“There are plenty more to come,” promised Michael Wolf, the Fort Lauderdale attorney who represents the Florida Arcade Association, a coalition of owners of senior arcades. He said he plans to file similar suits in every county in the state.

A lawsuit challenging the state law in federal court in Broward was filed in March on behalf of two arcade owners who argued that the state’s attempt to crack down on illegal slot machines unfairly included them, when their sweepstakes games require an element of skill. The arcade owners asked a U.S. District Court Judge James. I. Cohn to block enforcement of the law while they pursued the legal challenge, but he refused.

The lawsuit on behalf of Incredible Investments also raises the claim that the state violated the company’s equal protection rights when it sanctioned only sweepstakes run a “nationally advertised game promotion” to operate, thereby discriminating against locally owned companies.

“All of a sudden because they are a local business now they can’t run a lucrative promotion by runing a sweepstakes,’’ Kaplan said.

When asked about the lawsuit Tuesday, House Speaker Will Weatherford, R-Wesley Chapel, said he had no regrets.

"I am proud that we shut down the illegal Internet cafes in Florida,'' he said in a statement. "It's good policy and I'm only disappointed it took this long to do it."