Casino opponents pledge lawsuit if FL Legislature expands gambling, but how strong is the case?

By: - May 14, 2021 7:00 am

Seminole Hard Rock Hotel & Casino in Hollywood. Credit: Dmoore5556 via Wikimedia Commons.

How likely are the anti-casino gambling forces in Florida to take the state to court if the Legislature approves Gov. Ron DeSantis’ proposed gambling compact with the Seminole Tribe?

You can bet on it.

“We’re interviewing lawyers right now,” John Sowinski, president of No Casinos, told the Phoenix in an interview. He is a communications consultant.

It might not come to that if Sowinki’s lobbyists can persuade the Legislature to scrap the deal during a special session scheduled to begin on Monday, and he said they intend to try.

But note that the 30-year deal would guarantee a $2.5 billion return to the state during the first five years if lawmakers agree to expand gambling operations available to the tribe, including the potentially wildly lucrative online sports book.

Does Sowinski really expect the Legislature to say no?

“I’m always an optimist; we’re hoping that the Legislature might do the right thing, abide by the will of the people and the Constitution of Florida and federal law and allow this to be decided by voters instead of legislators,” he said.

“When voters pass a constitutional amendment, particularly one to empower themselves, that ought to be heeded.”

DeSantis’ legal team is convinced they have a strong case.

“We would not have agreed to this deal if we did not believe it was constitutionally defensible,” James Uthmeier, DeSantis’ acting general counsel, told House members during a Zoom briefing on Thursday.

Robert Jarvis, a professor at the Nova Southeastern University’s Shepard Broad College of Law, gave any legal challenge “zero” chances.

“Zero. There is no chance that this litigation is successful. It’s very clear on its face.”

Jarvis’ expertise includes Florida constitutional law, gambling law and sports law, according to Nova, and he has recently been featured in several news stories.

DeSantis signed the deal on April 23 following extensive negotiations with the tribe, which has ceased paying its agreed upon cut to the state from its Broward County casino operations amid a dispute about card games at pari-mutuel sites — think horse racing and dog tracks — that the tribe thought violated their monopoly on banked games.

The gist of the new deal is that the Seminoles could offer additional games like craps and roulette. Also, sports betting through servers that players could connect to through their cellphones.

No Casinos argues that, under Amendment 3 to the Florida Constitution, approved by 71.5 percent of the voters in 2018, the compact must be submitted to the voters for approval.

But that amendment doesn’t cover the Seminoles, a sovereign nation. So the pact provides that the tribe will host the betting servers on its land, arguably obviating any need to go to the voters. The idea, as the governor’s team put, is “hub and spoke” — servers on Seminole land form the hub where, technically, the state would consider the bet to have occurred even if the bettor is hundreds of miles away.

Pari-mutuel operators could participate, too. They’d come up with their own interfaces — called “skins” — but all bets again would run through tribal servers. They’d keep a cut of the action.

A clause in the pact provides that, should any court strike down that arrangement, the rest of the compact could survive.

The compact would allow slot machines outside a 15-mile exclusion zone surrounding a tribal casino in Broward County. Sowinski argues that that would allow slot machines in two facilities just outside the zone surrounding their Hard Rock Casino in Hollywood — the Trump National Doral Miami resort and the Fountainebleu hotel in Miami Beach.

News organizations including the Associated Press have reported about efforts to establish casinos at those sites.

No Casinos argues the arrangement runs counter to a couple of federal laws.

The Federal Wire Act holds, Sowinski said, “that a telephonic or electronic or online transaction of any sort occurs in two places: the place where the person originating the transaction is and the place where the person receiving the transaction is. It has to be legal in both of those places in order to be a legal transaction. That includes gambling, as well.”

Meanwhile, the Indian Gaming Regulatory Act holds that tribes can’t offer games not otherwise legal within a state. The compact would legalize sports betting on the Seminole land, Sowinski acknowledged, but he insisted allowing play statewide implicates Amendment 3 and would require a statewide referendum.

“The Legislature doesn’t have the authority to authorize that today within the state, and therefore, according to federal law, they can’t negotiate to put that on the tribal land,” Sowinski said.

Jarvis, of Nova Southeastern, meanwhile, pointed to a second provision of the Florida Constitution —  Article X Section 30 (c), which says, in part, that “nothing herein shall be construed to limit the ability of the state or Native American tribes to negotiate gaming compacts pursuant to the Federal Indian Gaming Regulatory Act for the conduct of casino gambling on tribal lands.”

The referendum language is therefore “irrelevant” to this discussion, Jarvis said. The federal Indian gambling law permits expanded games. As for the Wire Act, it would apply only to interstate sports betting, not intrastate, as provided for in the compact.

“There is absolutely no chance that this will be successful,” he said.

Even if a trial judge buys the No Casino argument, the state could appeal to the U.S. Court of Appeals for the 11th Circuit, which is packed with Donald Trump appointees (including two DeSantis had earlier placed on the Florida Supreme Court but whom Trump promoted), will certainly overrule, Jarvis predicted.

“And the U.S. Supreme Court, of course, is a Trump-appointed court. Trump has made it clear that he wants this deal. DeSantis has made it clear that he wants this deal.”

Federal agencies too, including the Department of the Interior (DOI), headed by Native American Deb Haaland, and its Bureau of Indian Affairs (BIA) and National Indian Gaming Commission (NIGC), also are going to accept the deal, he predicts.

“They exist nowadays to help tribes. They have always said yes when a tribe has wanted to do something,” Jarvis said.

“The optics of the first Native American secretary of the DOI opposing this deal, which the Seminoles have been working on for more than a decade, and which is an incredibly rich deal for the Seminoles … you simply cannot imagine in any real universe the DOI or the NiGC or the BIA being against this deal,” he said.

Moreover, the state and the tribe are on the same side.

“A federal judge, or even a state judge, would have really to so some very heavy lifting to find that a deal that has been negotiated in good faith over a long period of time by the tribe and state somehow violates the law.”

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Michael Moline
Michael Moline

Michael Moline has covered politics and the legal system for more than 30 years. He is a former managing editor of the San Francisco Daily Journal and former assistant managing editor of The National Law Journal. He began his career covering the Florida Capitol for United Press International. More recently, he wrote for Florida Politics.