Steve Geller.
Steve Geller. (Photo: Melanie Bell)

What’s happening with gambling in Florida is a crapshoot.

The Legislature ended the regular session without passing a gambling bill. That creates a vacuum for courts to fill, adding multitudes of lawyers and layers of legalities. Meanwhile, the Seminole compact that guarantees the state hundreds of millions of dollars a year may collapse.

Last month, the Florida Supreme Court gave preliminary approval to a proposed amendment for the 2018 ballot that’s supported by the Walt Disney Co. and other anti-gambling forces. The financial impact statement says there’s no way to determine the amendment’s effects.

Opponents represented by Marc Dunbar, who has a stake in a stalled Gadsden County casino project, argued it’s unclear whether the amendment would redefine what’s already considered legal gambling.

“However, as the sponsor points out, the opponents’ arguments concern the ambiguous legal effect of the amendment’s text rather than the clarity of the ballot title and summary,” the court said in an unsigned opinion. Focusing only on clarity, the justices approved the ballot initiative by a 4-2 vote.

Dissenting Justice Ricky Polston found the ballot summary misleading. Voters would be “deciding between a preference for controlling the expansion of full-fledged casino gambling and Florida’s current legal gaming landscape,” but they couldn’t tell that from the summary, he wrote.

In the gaming industry, all eyes are trained on the high court for its upcoming ruling in the case of Gretna Racing v. Florida Department of Business and Professional Regulation, which was argued six months ago. Other gambling-related cases are pending, including one decided by U.S. District Judge John Hinkle that may wind up in the U.S. Supreme Court. But the smart money says Gretna is pivotal.

“One opinion will probably determine everything else, and that’s Gretna,” said Broward County Commissioner Steve Geller.

The Exclusivity Card

Geller has been a player in gambling politics and law for most of his career. For a time during his 20 years in the Legislature, he was president of the National Council of Legislators from Gaming States. Now with his own firm, he’s a lawyer for pari-mutuels and a lobbyist for Mardi Gras Casino in Hallandale Beach.

He explained that the interests of the Seminole tribe and non-Seminole pari-mutuels in Miami-Dade and Broward counties are inherently opposed.

“If you’re Acme Casino in Dade or Broward, it is really irrelevant to you if the state receives many millions of dollars from the Seminole Tribe,” Geller said. “What they are concerned about is what they regard as unfair competition.” He said their effective tax rate is 40 percent to 45 percent, while the Seminoles are paying about 10 percent.

The state’s interests are complicated by money and politics. A compact between two sovereign entities, Florida and the Seminole Tribe, gives the state an estimated $300 million annually in exchange for the Seminoles’ exclusive right to offer slots and banked card games except in Miami-Dade and Broward.

Much of the litigation that swirls around gambling concerns whether non-Seminole pari-mutuels are being allowed to breach the compact by undermining this all-important exclusivity guarantee.

The Seminoles see the card games, such as blackjack and three-card poker, as a potential assault on exclusivity. A five-year agreement limiting the games to Seminole facilities expired last year, sending the tribe to federal court in Tallahassee.

The state argued the games, in which a player acts as the bank, do not violate the compact. Hinkle ruled they do because no matter who’s the designated bank, the casino hosts the game, and the house never loses. The Tallahassee judge’s ruling is on track for the U.S. Court of Appeals for the Eleventh Circuit.

The Seminoles are still paying into the compact, but Hinkle’s ruling delayed distributions, Geller said. “If it turns out that Hinkle’s upheld, the Seminoles could ask for the money back.”

Waiting for Gretna

The issue in Gretna is whether a 2009 law that allows counties to approve slots at pari-mutuels was an invitation to statewide expansion or if it was meant to benefit only Hialeah Park in Miami-Dade.

Eight counties where voters passed referendums for slots, including Palm Beach County, are banking on the justices ruling for Gretna Racing, owner of a small horse track in the Panhandle. The city of Gretna, population 1,398 as of 2014, has a 10-year master plan for a quarter-horse track, a convention hotel, restaurants and shops — all dependent on getting a slots license from the state Division of Pari-Mutuel Wagering. The division denied Gretna’s application, triggering the appeal.

The state’s position is that if the county home-rule provision is read along with the go-ahead for the 20-year Seminole compact in the same law, it’s clear the Legislature didn’t intend to expand slots outside Miami-Dade and Broward. Legislators wouldn’t purposely sacrifice slots exclusivity and all the money that flows from it.

“Under Gretna’s view, the Legislature left it to individual counties and their voters to decide when, where and how quickly gambling would expand in Florida. Slot machines could never expand, or they could explode overnight. The Legislature, Gretna suggests, left that to others,” a brief for the state says.

Geller said legislators felt they had to wait for the Gretna ruling. If the Legislature passed a bill prohibiting slots outside Miami-Dade and Broward and then Gretna won, “that would have blown up the compact.”

“To say that we’re turning everything over to the courts is inaccurate,” Geller said. “But it is accurate to say the Gretna ruling has the ability to overturn everything else.”

ADVISORY OPINION TO THE ATTORNEY GENERAL RE: VOTER CONTROL OF GAMBLING IN FLORIDA

Case No.: SC16-778

Date: April 20, 2017

Case type: Gambling amendment

Court: Florida Supreme Court

Author of opinion: Per curiam

Lawyer for petitioner: Adam Schachter, Gelber Schachter & Greenberg, Miami

Lawyer for opponents: Marc Dunbar, Jones Walker, Tallahassee

Panel: Chief Justice Jorge Labarga with Justices Barbara Pariente, Peggy Quince and Charles Canady; Justice Ricky Polston (dissent) with Justice Fred Lewis; Justice Alan Lawson did not participate

What’s happening with gambling in Florida is a crapshoot.

The Legislature ended the regular session without passing a gambling bill. That creates a vacuum for courts to fill, adding multitudes of lawyers and layers of legalities. Meanwhile, the Seminole compact that guarantees the state hundreds of millions of dollars a year may collapse.

Last month, the Florida Supreme Court gave preliminary approval to a proposed amendment for the 2018 ballot that’s supported by the Walt Disney Co. and other anti-gambling forces. The financial impact statement says there’s no way to determine the amendment’s effects.

Opponents represented by Marc Dunbar, who has a stake in a stalled Gadsden County casino project, argued it’s unclear whether the amendment would redefine what’s already considered legal gambling.

“However, as the sponsor points out, the opponents’ arguments concern the ambiguous legal effect of the amendment’s text rather than the clarity of the ballot title and summary,” the court said in an unsigned opinion. Focusing only on clarity, the justices approved the ballot initiative by a 4-2 vote.

Dissenting Justice Ricky Polston found the ballot summary misleading. Voters would be “deciding between a preference for controlling the expansion of full-fledged casino gambling and Florida’s current legal gaming landscape,” but they couldn’t tell that from the summary, he wrote.

In the gaming industry, all eyes are trained on the high court for its upcoming ruling in the case of Gretna Racing v. Florida Department of Business and Professional Regulation, which was argued six months ago. Other gambling-related cases are pending, including one decided by U.S. District Judge John Hinkle that may wind up in the U.S. Supreme Court. But the smart money says Gretna is pivotal.

“One opinion will probably determine everything else, and that’s Gretna,” said Broward County Commissioner Steve Geller.

The Exclusivity Card

Geller has been a player in gambling politics and law for most of his career. For a time during his 20 years in the Legislature, he was president of the National Council of Legislators from Gaming States. Now with his own firm, he’s a lawyer for pari-mutuels and a lobbyist for Mardi Gras Casino in Hallandale Beach.

He explained that the interests of the Seminole tribe and non-Seminole pari-mutuels in Miami-Dade and Broward counties are inherently opposed.

“If you’re Acme Casino in Dade or Broward, it is really irrelevant to you if the state receives many millions of dollars from the Seminole Tribe,” Geller said. “What they are concerned about is what they regard as unfair competition.” He said their effective tax rate is 40 percent to 45 percent, while the Seminoles are paying about 10 percent.

The state’s interests are complicated by money and politics. A compact between two sovereign entities, Florida and the Seminole Tribe, gives the state an estimated $300 million annually in exchange for the Seminoles’ exclusive right to offer slots and banked card games except in Miami-Dade and Broward.

Much of the litigation that swirls around gambling concerns whether non-Seminole pari-mutuels are being allowed to breach the compact by undermining this all-important exclusivity guarantee.

The Seminoles see the card games, such as blackjack and three-card poker, as a potential assault on exclusivity. A five-year agreement limiting the games to Seminole facilities expired last year, sending the tribe to federal court in Tallahassee.

The state argued the games, in which a player acts as the bank, do not violate the compact. Hinkle ruled they do because no matter who’s the designated bank, the casino hosts the game, and the house never loses. The Tallahassee judge’s ruling is on track for the U.S. Court of Appeals for the Eleventh Circuit.

The Seminoles are still paying into the compact, but Hinkle’s ruling delayed distributions, Geller said. “If it turns out that Hinkle’s upheld, the Seminoles could ask for the money back.”

Waiting for Gretna

The issue in Gretna is whether a 2009 law that allows counties to approve slots at pari-mutuels was an invitation to statewide expansion or if it was meant to benefit only Hialeah Park in Miami-Dade.

Eight counties where voters passed referendums for slots, including Palm Beach County, are banking on the justices ruling for Gretna Racing, owner of a small horse track in the Panhandle. The city of Gretna, population 1,398 as of 2014, has a 10-year master plan for a quarter-horse track, a convention hotel, restaurants and shops — all dependent on getting a slots license from the state Division of Pari-Mutuel Wagering. The division denied Gretna’s application, triggering the appeal.

The state’s position is that if the county home-rule provision is read along with the go-ahead for the 20-year Seminole compact in the same law, it’s clear the Legislature didn’t intend to expand slots outside Miami-Dade and Broward. Legislators wouldn’t purposely sacrifice slots exclusivity and all the money that flows from it.

“Under Gretna’s view, the Legislature left it to individual counties and their voters to decide when, where and how quickly gambling would expand in Florida. Slot machines could never expand, or they could explode overnight. The Legislature, Gretna suggests, left that to others,” a brief for the state says.

Geller said legislators felt they had to wait for the Gretna ruling. If the Legislature passed a bill prohibiting slots outside Miami-Dade and Broward and then Gretna won, “that would have blown up the compact.”

“To say that we’re turning everything over to the courts is inaccurate,” Geller said. “But it is accurate to say the Gretna ruling has the ability to overturn everything else.”

ADVISORY OPINION TO THE ATTORNEY GENERAL RE: VOTER CONTROL OF GAMBLING IN FLORIDA

Case No.: SC16-778

Date: April 20, 2017

Case type: Gambling amendment

Court: Florida Supreme Court

Author of opinion: Per curiam

Lawyer for petitioner: Adam Schachter, Gelber Schachter & Greenberg, Miami

Lawyer for opponents: Marc Dunbar, Jones Walker , Tallahassee

Panel: Chief Justice Jorge Labarga with Justices Barbara Pariente, Peggy Quince and Charles Canady; Justice Ricky Polston (dissent) with Justice Fred Lewis ; Justice Alan Lawson did not participate