Florida Gambling Bill Goes to the Voter

Florida’s Amendment 3, which grants Florida voters the exclusive right to decide if and when to authorize the expansion of land based casinos and online casino gambling in Florida, passed with a 70% YES vote. However, the ballot question is undergoing examination as operators try to figure out ways to get around the new stumbling block.

The main question seems to be whether the Amendment applies to sports betting.  Thus far, voters seemed to be most focused on how the amendment could impact the development of new casino centers in the state. But now, legal experts are also examining how the Amendment might affect sport betting legalization in Florida. Their tentative conclusion is that the Amendment might not make it more difficult to pass sports betting legislation.

Fine Print

Gambling proponents are focusing on the Amendment 3 petition form where the definition of “casino gambling” used gives no indication that it includes sports betting. There’s no mention of sports betting and, these activists say, “casino gambling” is defined in such a unique and specific way so as to dis-include sports betting completely from the discussion.

The Amendment 3 petition form defines “casino gambling” as:

  1. Any of the types of games typically found in casinos
  2. Games that are within the definition of “Class III” gaming under the Indian Gaming Regulatory Act (“IGRA”), the federal law that governs Indian gaming.

According to the Amendment 3 petition form, on the date that Amendment 3 is approved by voters, the definition of “casino gaming” needs to be reassessed. The petition form states that the reassessment will take place “upon the adoption of this Amendment.”  The petition form further states that it also includes games “that are added to such definition of Class III gaming in the future.”

Many observers feel that since there’s no cut-off date or expiration, the definition is open-ended and doesn’t include sports betting which the IGRA regulations categorize as a form of Class III gaming.

Now it remains to be seen how Florida officials will read the definitions. As of November 6 2018, officials must determine whether sports betting is, indeed, the  “type of game” that is “typically found” in “casinos?” If they decide “yes,” it will tip the scales in favor of sports betting legalization remaining within the authority of the Florida Legislature.

Casino Sports Betting

Sports betting isn’t typically part of a casino’s game floor. November 6, 2018  is the date that Amendment 3 petition form set for assessing “typicality..”  On that date, 40 U.S. states allowed casino gambling and only six (New Jersey, West Virginia, New Mexico, Mississippi, Delaware and Nevada) hosted casinos where sports betting was allowed. That’s 15% of eligible states – decidedly not “typical.”

Additionally, there are more than 500 Native American casinos in the U.S., yet only three tribal casinos (less than one percent) have a sports betting option.

So, it’s questionable whether Amendment 3 covers sports betting since  it cannot be credibly  asserted that sports wagering is “typically found” in casinos,

Fair Notice

Additionally, the Florida constitution states that a ballot question must provide “fair notice” so that voters know exactly for what they are voting. The law states that voters must be told “in clear and unambiguous language,” how the proposed ballot question will affect the state and its residents. One recent case that emphasizes this involves the Askew v. Firestone case in which Florida voters were asked to consider constitutional changes. The Florida Supreme Court ruled that voters “must be able to comprehend the sweep of each proposal from a fair notification in the proposition itself.”

Regarding Amendment 3 and sports betting, three issues stand out.

  1. The words “sports wagering” or “sports betting” do not appear anywhere on the official ballot card.
  2. The definition of “casino gambling” doesn’t give voters “fair notice” that the Amendment will encompasses sports betting. On the contrary -- voters are faced with a complex two-part definitional test for “casino gambling.” The definition takes up 11 lines and requires that the voter be familiar with both.
  3. The types of games that are “within the definition of the Federal Indian Gaming Regulation Act’s Class III gaming".
  4. The types of “games” that are “typically played” in “casinos”.

Florida courts might very well be asked to rule on the permissibility of sports betting based on the question of how many Florida voters – aside from casino loyalty program members and gaming lawyers – would be aware of the full range of games that are “typically played” in casinos.

Added to that, the Amendment would need to be clarified regarding the number of Florida voters who are familiar with how the  IGRA  defines “Class III” gaming. Critics of the scope of Amendment 3 contend that a ballot question that aims to give voters “fair notice” of the types of games that the IGRA includes in its definition of Class III gaming should supply that definition right on the ballot form. By forgoing that step, the Amendment hid vital information from the voting public – the same people who might not have wanted to include sports betting in the scope of Amendment 3.

Amendment 3 Definition

Amendment 3 did provide definitions of “casino gambling.” The Amendment defined casino gambling as:

  1. Any house banking game, including but not limited to card games such as baccarat, chemin de fer, blackjack, and pai gow
  2. Any player-banked game that simulates a house banking game, such as California black jack; casino games such as roulette, craps, and keno
  3. Slot machines
  4. Any other game in which outcomes are determined by random number generator or are similarly assigned randomly, such as instant or historical racing.

Sports betting is not mentioned here at all. This leads any reasonable person to conclude that the Amendment refers to table and dice games -- games which are played, won and lost within the “four walls” of a brick-and-mortar casino. Since sports wagering centers on the results of athletic performances and real-world events that take place wholly outside of a casino property, the Amendment does not seem to refer to sports betting at all.

It seems obvious, even to a casual observer, that a ballot question that ties the definition of “casino gambling” to “games typically found in casinos” and does not mention the words “sports betting”  could not have given Florida voters the required “fair notice” that would include future sports betting under the scope of the Amendment. .

Thus, many people are agreeing that Florida lawmakers are still free to legislate sports betting without further voter consent.

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