June 07, 2016

Justices wade into murky waters of gaming law to hear fight over expanding slots

Barrel racerDid the Florida Legislature quietly intend to allow counties to expand slot machines anywhere in the state in 2010 when it modified a statute that was initially intended to allow Hialeah Race Course to operate slot machines?

That was the question before the Florida Supreme Court Tuesday as owners for Gretna Racing argued that the rural racetrack should be allowed to install slot machines because it is has the approval of county voters.

"This is likely the easiest case you're going to deal with today,'' said Marc Dunbar, lawyer, lobbyist and part-owner of Gretna Racing, on the same day the court heard arguments on the death penalty. "It will turn on the interpretation of a single word: after."

But Jonathan Williams, deputy solicitor general for the state, disagreed. He said the case relies on more than grammar and semantics and urged the court to uphold a First District Court of Appeal decision which voted 2-1 to reject Gretna's slots license because the Legislature did not authorize slot machines outside of Miami-Dade and Broward.

"You either have to get the constitutional authorization or the legislative authorization,'' Williams told the court, and Gretna had neither.

If the court sides with Gretna, it could usher in the explosive growth of gambling across the state as at least five other counties — Brevard, Hamilton, Lee, Palm Beach and Washington — have already voted to bring casinos to their stressed horse and dog tracks and jai alai frontons. It would also invalidate the $120 million-a-year gaming compact between the state and the Seminole Tribe of Florida.

Justice Barbara Pariente opened the questioning by suggesting that the ruling might not be as easy as Dunbar suggested.

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Galvano: Legislature had no intention to expand slots to counties, and therefore had no debate about it

Bill GalvanoSen. Bill Galvano, the Bradenton Republican who has been at the core of the Legislature's gambling negotiations for the past seven years, said Tuesday that when lawmakers adopted the change to the state gaming law in 2010, they did not intend to open the door to the expansion of slot machines as Gretna Racing and five other pari-mutuels around the state are claiming.

"It was not the intent of the Legislature to open the door for counties to hold their own referendums to allow the expansion of slots,'' he said in an interview with the Herald/Times.

"In fact, the language as written -- and as explained at the time -- was that it needed to be a legislatively-approved referendum, or one that was brought forward by voters at a constitutional level. It was never what Gretna is attempting -- which flies in the face of the bill they claim is giving them the authority."

Galvano's remarks came on the day the Florida Supreme Court heard oral arguments over what could be a pivotal case as it relates to the future of gambling in Florida.

Gretna Racing, a Gadsden County racetrack and card room, argued before the court on Tuesday that it is entitled to operate slots at its facility because county voters gave them approval to operate the machines in 2012 and they meet the criteria because they have operated "flag drop" races for two years. If it succeeds, at least five other counties — Brevard, Hamilton, Lee, Palm Beach and Washington  — which have already voted to bring casinos to their stressed horse and dog tracks and jai alai frontons would install them as well.

Lawyers for Attorney General Pam Bondi responded, arguing that the 2010 law allows counties to authorize slot machines only if the Legislature authorized the referendum and agreed to expand gambling. Galvano and former state Sen. Dan Gelber, who attended the oral arguments Tuesday hearing on behalf of former Gov. Bob Graham, agreed.

Galvano, a lawyer, was point man for the House of Representatives in 2009 and 2010 during negotiations with the Seminole Tribe over the state's gaming compact. In 2009, the legislature modified the implementing law relating to slot machines in Miami-Dade and Broward by allowing Hialeah Race Course to be eligible for a slots license.

The race track was not an operating pari-mutuel when voters approved the statewide constitutional amendment allowing slot machines in Miami Dade and Broward in 2003 but, because Hialeah was located in Miami-Dade, legislators agreed to revise the law to include it among the casinos that could operate Class III slots. 

By 2010, the Legislature wanted to clarify the terms of the referendum language referred to in the 2009 law, Galvano said.

"We didn't want the Hialeah expansion to muddy the waters,'' he said. "Instead, we reiterated that if we approved legislatively-expanded slots -- or a legislatively constitutional amendment...we didn't relinquish authority."

But instead of clarifying, the law has become another vehicle for gaming owners across the state to use as a method to get access to lucrative slots license -- which now are allowed only in Miami-Dade and Broward and at the seven casinos owned by the Seminole Tribe of Florida. 

If the court sides with Gretna, it could usher in the explosive growth of gambling across the state and invalidate the $250 million-a-year gaming compact between the state and the Seminole Tribe of Florida

Galvano said the 2010 language was drafted by legislative staff and, in the process, "I did receive input from the entire pari-mutuel community and their representatives,'' he said.

"The actual drafting came down to the legislature and the bill drafting staff and counsel. I can tell you there was no one in the process at the time that was advocating for the independent ability of counties to expand based on referendum without legislative approval. That was not even part of the discussion."

Absent a public debate, there was pressure from the pari-mutuel industry who wanted the opportunity to bring slot machines to their ailing horse tracks, dog tracks and jai alai frontons, Galvano said. "But from the [legislative] members' standpoint, it was understood there would be an opportunity for Hialeah to expand, but that we were not expanding anywhere else."

According to the legislative archives, quoted in the attorney general's brief, Rep. Dwayne Taylor, D-Daytona Beach, asked Galvano during the 2009 debate on the gambling bill whether it "would allow for the slot machines at the pari-mutuel facilities” outside Miami-Dade and Broward and whether “a local area would need to have a referendum, and in order to do that, they would have to come back to the House or to the Legislature to get approval for the referendum?”

Galvano is recorded as having replied: “Yes, if you are talking about Class III games [which includes slot machines], you are correct. A county could come back to the Legislature, which could authorize that type of referendum. It could also be through constitutional amendment, [whether] through a joint resolution or a citizen petition.” 

Gelber, a Miami Democrat and gambling opponent, agrees that is how he perceived the debate when he served in the Legislature in 2009 and 2010. 

"In that decade, the Legislature never, if at all, would expand gambling -- unless it was forced upon them by a constitutional amendment,'' he said after the court hearing Tuesday. "The notion that that somehow authorized 65 other counties to start doing what the legislature refused to do every time it was brought before them is pretty absurd...

"Nobody was standing up and saying we're having a debate about 65 other counties,'' Gelber said. "The idea that in implementing that constitutional amendment, they would sort of under-the-the table give 65 other counties that same right is sort of absurd... If that had happened, I know a few of my colleagues whose heads would have exploded."

June 05, 2016

Tiny Gretna racetrack, brought to life by cunning creativity, could now shape future of gaming in FL

Barrel racingThe Florida Supreme Court will hear arguments Tuesday over whether a nascent, small racetrack in the impoverished North Florida town of Gretna will turn the tables on the state’s gambling future.

The issue before the court is whether Gretna Racing is entitled to slot machines because voters approved a countywide referendum in 2012. If the court agrees, the ruling will go far beyond rural Gadsden County.

It will have repercussions from Palm Beach and Naples to Jacksonville, and could usher in the explosive growth of gambling across the state. It could also change the terms of the $250 million-a-year gaming compact between the state and the Seminole Tribe of Florida —which is invalidated if slot machines are allowed outside of Miami-Dade and Broward.

At least five other counties—Brevard, Hamilton, Lee, Palm Beach, and Washington — have already voted to bring casinos to their stressed horse and dog tracks and jai alai frontons. They each have already completed applications for a slots license and Palm Beach has announced it could install them within weeks. Other counties, including Duval and Marion, are prepared to conduct a referendum, too, if the court agrees with Gretna.

If the court rejects Gretna’s argument, however, the pressure will be back on legislators to fix what many consider a porous gaming regulatory structure — rife with room for legal loopholes, pursued by gambling lobbyists to win slots licenses, and subject to inconsistent interpretations by Florida regulators. Story here. 

May 13, 2016

Politico posts Seminole Tribe's financial details, so Tribe drops its attempt to seal deposition

After waiting three days and drawing a lawsuit from the Seminole Tribe of Florida, Politico of Florida on Friday published profit details from the transcript of Seminole Gaming CEO Jim Allen, prompting the Tribe to declare its request for an emergency hearing "moot." 

"Because the Court can no longer afford the Tribe meaningful relief, the Tribe hereby withdraws its Emergency Motion for Protective Order, and responds in opposition to POLITICO’s Motion to Intervene,'' wrote the Michael Moody on behalf of the tribe.  Download Tribe withdraws motion.

Politico, the online news site, obtained Allen's transcript on Tuesday as part of a public records request of depositions in the pending case before the U.S. District Court's Northern Florida division, but it chose not to write about the information or to make the document public.

On Wednesday, the tribe sought an emergency hearing to force Politico to seal a copy of a deposition given by Allen until it could redact the annual gaming revenue that was released by the Department of Business and Professional Regulation as part of a public records request. The tribe argued that the information was a trade secret and the state had informally agreed to withhold the information from the public record. 

Politico's lawyers, and Florida public records advocates, argued the tribe's request -- and the state's alleged consent -- was an unconstitutional prior restraint of a public document and Politico asked to intervene in the pending case. 

The tribe sued the State of Florida last October for allegedly breaching its gambling compact and for failing to negotiate in good faith. Allen was deposed as part of the lawsuit last month and, the tribe argues, the state agreed not to release the transcripts of any depositions without prior review from the tribe.

On Friday morning, Politico published a report quoting Allen saying that the tribe “generated $2.2 billion in gaming revenues” in 2014 and noted that Allen had previously been quoted as citing that revenue number in the past. 

Those revenue figures were consistent with the numbers used by state economists when assessing the impact of proposed gaming legislation last session and were consistent with projections from a Spectrum Gaming analysis sought by the Florida Legislature in 2013. 

The tribe's argued that the court should seal the document so that it can release a redacted copy of the transcript, arguing that it is a protected trade secret. 

Barbara Petersen, attorney and president for the First Amendment Foundation, told the Herald/Times there is no exemption in this case for a trade secret.

"The Seminole Tribe has no authority to assert a trade secrets exemption,'' she said. "It's a public record in the hands of DBPR."

"It's troubling when the state is willing to negotiate into private negotiations over the public's rights of access to information,'' said Mark R. Caramanica, lawyer for Politico in an interview with the Herald/Times. 


May 11, 2016

Genting sues Miami-Dade, seeking court approval to operate casino at Omni site

Genting Group, the Malaysian casino operator whose plan to build a massive gambling resort in downtown Miami has been stalled by legal and political setbacks, is suing Miami-Dade County and Miami-Dade State Attorney Katherine Fernandez Rundle in what appears to be a last-ditch effort to force the state to allow card games and slots at its property in the old Omni mall.

The novel legal tack seems designed to get around a 2014 denial by state regulators of Gulfstream Park’s request to move a pari-mutuel permit to the Omni, where the Hallandale Beach racetrack had an agreement with Genting to establish a casino.

The lawsuit, filed April 27 by Genting real-estate division Resorts World Omni, asks a judge to pre-emptively declare it lawful for Gulfstream to run a casino at the Omni. That order, if granted, would preclude Miami-Dade police and state prosecutors from filing criminal charges against the Omni casino operators.

“The purpose of the action is to ensure that our review of the relevant laws is accurate and to provide clarity and certainty that the activities contemplated by the lease are permissible,’’ said Chris Kise, an attorney with the Tallahassee office of Foley & Lardner who filed the suit on behalf of Resorts World. Story here. 


March 17, 2016

Future of gaming in Florida will be decided by courts; special session 'unlikely'

Casino picWhen legislators finished their annual session last week without a gaming bill or a compact with the Seminole Tribe, they raised the stakes on the future of casinos in Florida, and it’s precisely where gaming opponents want it.

Instead of lawmakers deciding the future of expanded gambling, that decision will now be made by the courts in pending lawsuits before the Florida Supreme Court and a federal judge.

The court could conclude that lawmakers have no authority to authorize slot machines outside of Miami-Dade and Broward counties without statewide voter approval, thereby neutering the Legislature’s influence. It could say that only the Legislature can decide where to put new games.

Or a third option — the most explosive of all and the one the plaintiffs are hoping for — could open the door to unprecedented expansion of slot machines if the court rules that Palm Beach and Gadsden counties could seek permits to install slots machines because local voters have approved it.

“It could become a free-for-all for slot machines across the state,” said Rep. Jose Felix Diaz, R-Miami, the House’s chief negotiator who spent the last six months trying to work out acompact with the governor and the tribe, as well as a gaming bill that suited the Senate and the diverse interests of the pari-mutuel industry.

“If that happens, you can’t put the genie back in the bottle. The pari-mutuels across the state will argue they have some vested right to slot machines, and they will fight tooth and nail to make sure their legislators are not voting against them.” Story here. 

March 04, 2016

After death of gaming bill, House passes injury reporting at greyhound tracks

After rejecting legislation to require the greyhound racing industry to report animal injuries for the last four years, the Florida House approved an amendment Friday that requires track owners to disclose dog deaths, and is poised to pass the measure last week.

The bill is a concession to animal rights advocates, who have fought for the measure that has passed the Senate unanimously in the last two years, but has been entangled in pari-mutuel industry politics in the House.

After the gaming bill was declared dead by House leaders this week, supporters of the measure pushed to the measure added to a routine regulatory bill, said Rep. Jared Moskowitz, D-Coral Springs, the sponsor of the the amendment to HB 1167.

Under the amendment, any injury to a racing greyhound in Florida must be reported to the Division of Pari-mutuel Wagering within 7 days.

"This would be the first significant piece of greyhound protection legislation to ever pass the Florida legislature,'' said Carey M. Theil, executive Director of GREY2K USA Worldwide, which advocates for an end to dog racing. "We're hopeful lawmakers will send this good bill to the governor in the coming days."

Unlike other states, Florida’s greyhound industry does not have to report when dogs are injured as a result of racing or training. The measure imposes fines on track veterinarians who fail to report race-related injuries and follows a similar bill passed in 2013 that requires tracks to report greyhound deaths.

Under the current law, the reports show that 79 greyhounds died in 2013, 113 in 2014 and 93 in 2015 -- an average of one every three days due to race-related causes.

If a greyhound dies on the racetrack, it has to be reported, but if the death occurs outside the track and they euthanize the dog somewhere else, they don't have to report it as a race-related death. 

The requirement to report all injuries, "closes that loophole,'' Moskowitz said. "If the greyhound dies in a car or at the vet, it should be reported."

He suggested that dog trainers and owners don't want to report the deaths because if the reporting shows there are hundreds more deaths than previously known, it might increase the public opposition to racing.

Moskowitz said that when an injury reporting requirement was passed in Massachusetts, deaths to racing dogs declined by 40 percent in the first year, he said, because "it's less expensive to euthanize dogs than it is to fix a broken leg and they don't want you to know they are euthanizing the dogs."

In the last two years, the Senate named its bill after Vicky Gaetz, the wife of former Senate President Don Gaetz, R-Niceville, who is an animal lover and who worked to help persuade lawmakers to pass the death reporting bill

The Florida Greyhound Association, which represents owners, trainers and breeders, has opposed injury reporting without passing additional requirements to keep dogs safe, suggesting that instead it is a public relations effort by the animal activists aimed to end dog racing. The organization has repeatedly pushed for a three-pronged plan to require tracks to end practices that cause most dog injuries -- poorly maintained track surfaces, electrocution caused by non-insulated electrical lines carrying the "lure," and lures that injure dogs. 

"If they really wanted to help dogs, they'd try to prevent injuries,'' said Ramon Maury, lobbyist for the greyhound association. "But they don't care about dogs. They want to use the strategy against us."  

March 02, 2016

Tom Lee and Andy Gardiner spear the corpse: gaming bill is dead

If anyone thought there was a chance of resurrecting the gaming bills at Thursday's Senate Appropriations Committee meeting, Senate President Andy Gardiner and budget chairman, Sen. Tom Lee, extinguished that possibility late Wednesday.

"It's just a bridge too far this late,'' said Lee, R-Brandon, after the agenda to the last meeting of his committee was posted with no gaming bills. "We don't have the time on the agenda. There's not an agreement. Every time you put a gaming bill up in the Florida Legislature it's like throwing a side of beef into a shark tank."

Meanwhile, Gardiner, R-Orlando, contradicted claims from members of the pari-mutuel industry that he was the force that stopped the gaming bills from advancing to the Senate floor.

"I've heard the lobbyists, the gaming guys, trying to misconstrue my comments,'' Gardiner told reporters. "If something came to my desk. I would not block it. As far as I know, it has not come to my desk. I will support the sponsor of the bill. We can't try to rewrite history here.

"Sen. Bradley negotiated a compact with the governor's office for months. In committee, an amendment was put on his bill which he voted against. So I don't think anybody would be surprised when he stands up before the committee and TPs his bill. This idea that we would just waive all the rules because somebody wants to have a vote on the floor -- we're going to follow what the chair recommendation is. There's still time but I think people need to make sure we don't misconstrue what I said."

"As I've said before, gaming bills tend to die of their own weight. What happened in the committee, the reality is what they did violated the existing compact,'' he said. "Members have to decide if they want to do that. An argument could be made, if you pass that bill as amended, we would have had to take $75 million from the existing budget we're presently negotiating. I think it just got too heavy and the sponsor decided to do away with it." 

March 01, 2016

Senate committee tables gambling bills, likely ending debate for session

Bradley and Galvano

Mired by the prospect of uncertain court rulings and constant infighting by an aggressive industry, the Florida Senate signaled Tuesday that efforts to rewrite the state's gambling bills and ratify a gaming agreement with the Seminole Tribe may be dead for the session.

The Senate Appropriations Committee tabled two Senate bills that would have ratified the compact with the tribe, SB 7074, and a bill that would have opened the door to expanding slot machines in at least five counties where voters have approved it, SB 7072.

"It's not coming back up,'' said Sen. Bill Galvano, R-Bradenton, before the meeting.

Sen. Tom Lee, R-Brandon, chairman of the committee said the bills are likely dead for the session that is scheduled to end March 11, but it would be up to the bill sponsor, Sen. Rob Bradley, R-Fleming Island, to revive them at the next meeting of the committee on Thursday.

"Nothing's dead until the handkerchief drops but I would be very, very surprised if we saw any action on this issue this session,'' Bradley told the Herald/Times, noting that the proposal had become too laden with ways to expand gaming that it was unworkable.

If the Legislature fails to ratify the deal negotiated between the Gov. Rick Scott and the Seminole Tribe, it would be another blow to the governor's goals this session. In December, the governor signed a 20-year compact that would guarantee $3 billion over 7 years in exchange for giving the tribe the exclusive ability to offer craps and roulette in Florida, and slots and black jack outside Miami-Dade, Broward and Palm Beach.

The guarantee has been touted as the largest Indian gaming agreement in U.S. history but it will not become law without legislative ratification.

Until then, the tribe continues to have the exclusive right to slot machines outside of Miami-Dade and Broward County in return for monthly revenue sharing payments of about $100 million under the 2010 compact. Another provision of that compact, which authorizes the tribe's exclusive operation of black jack at its South Florida casinos, has expired.

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February 29, 2016

House sends 'love note' to Senate and agrees to expand gambling outside South Florida

CasinoIn a long-shot bid to keep a gambling overhaul bill alive, the House Finance & Tax Committee sent a “love card to the Senate” on Monday, accepting its proposal to allow dog tracks to operate slot machines in at least five counties where voters have approved them.

The plan would require the governor to renegotiate the agreement he struck with the Seminole Tribe of Florida and would likely result in a lower guarantee of revenues than the $3 billion the tribe has already authorized.

It also means that one of Florida's oldest industries, greyhound racing, would be replaced by slot machines in Palm Beach, Brevard, Gadsden, Lee and Washington counties. A handful of other counties could conduct voter referendums by January 2017 to be allowed to replace dog tracks, quarter horse tracks or jai alai frontons with slot machines.

Only parimutuels within a 100 mile radius of the Seminole's most profitable facility — the Hard Rock Casino in Tampa — would be exempt from being able to seek voter approval for slot machines. That would affect parimutels such as Tampa Bay Downs, Tampa Bay Greyhound Track,, St. Petersburg Kennel Club and Sarasota Kennel Club.

The compromise was an attempt by the House's lead compact negotiator, Rep. Jose Felix Diaz, R-Miami, and the House Finance & Tax Committee chairman, Rep. Matt Gaetz, R-Fort Walton Beach, to find a way to win enough votes for the compact in the Senate before lawmakers end the session in two weeks. But Senate leaders have indicated that the deal may be too complicated to resolve with the time remaining.

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