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Law360, Miami (June 13, 2016, 11:01 PM ET) — Two groups whose members include gaming facility operators and other interested parties have urged the Florida Supreme Court to reject a ballot initiative that says it would give voters more control of gambling expansion, arguing the initiative is overly broad, misleading and unclear.
The proposed Voter Control of Gambling Amendment, introduced by the recently formed anti-gambling political action committee Voters in Charge, is before the state’s highest court for review of whether it meets requirements that it embrace a single subject and that the proposed ballot question’s title and summary are clear and unambiguous, in order to be eligible for inclusion on the state’s 2018 election ballot.
Floridians for Clarity in Gaming Control, a group made up of Native American tribe members, arcade operators, casino and lottery vendors and pari-mutuel permit holders, argued in a brief filed Friday that the initiative’s title and summary would mislead voters on the rights it provides them, as well as possible conflicts with local government powers and its impact on the Florida Legislature and tribal gaming.
The group also argued that the initiative is not limited to a single subject because it would force voters who might oppose more casinos but support some parts of the state’s current gaming structure to make an “all or nothing choice.”
“The gambling initiative engages in logrolling by placing the elector in the position of deciding between a preference for controlling the expansion of full-fledged casino gambling and Florida’s currently legal gaming landscape,” Floridians for Clarity argues.
The group’s filing came a day after several operators of pari-mutuel facilities in the state also voiced their opposition, saying the proposed amendment could hurt their businesses by making the gambling services they provide illegal immediately.
Jacksonville Kennel Club Inc., Dania Entertainment LLC, Investment Corp. of Palm Beach, West Flagler Associates Ltd., Bonita-Fort Myers Corp. and Melbourne Greyhound Park LLC own entertainment complexes that offer intertrack wagering on horse racing, dog racing or jai alai, as well as card-room games, with Dania and West Flagler also approved by the state to have slot machines, according to the brief.
They say they are also troubled that a blanket prohibition of card games or any other types of “casino gambling” currently authorized under Florida law is “not articulated” in the text of the proposed amendment.
“Failure to fully inform the voters of these ramifications is not only unfair to the voters, it is unfair to the gaming industry which employs thousands of Floridians,” the pari-mutuels said.
The two groups’ briefs raise several common concerns.
Neither the ballot summary nor the proposed amendment’s text addresses whether the law intends to be applied prospectively or retrospectively, the groups say, arguing that is a violation of the “clear and unambiguous” requirement.
They also claim the title and summary misleads voters as to the rights it will be providing them. The pari-mutuels point to inconsistencies between the use of the word “control” and “authorize,” noting that the initiative proposes to leave control of regulating gaming in the hands of the Legislature. Floridians for Clarity argues the definition of control goes so far as to leave lawmakers with the power to establish new gaming facilities as well.
The pari-mutuels argue that the initiative covers two competing subjects, in violation of the single-subject mandate, by expressly discussing giving voters exclusive rights to approve new casino gambling but not clearly discussing a potential repeal of existing gambling activities.
Further conflicts arise between the initiative’s claims that it would give voters exclusive rights but also not impact federal laws and Native American tribe’s gaming rights, and also how the voters’ new rights would interact with local laws and home rule rights, the groups say.
The proposal from the recently formed Voters in Charge group would take away the power to approve casino gambling from lawmakers and place it in the hands of Florida voters, but it leaves intact the state Legislature’s authority to restrict, tax or regulate gambling, along with the ability of the state and Native American tribes to negotiate gambling on tribal lands, according to the measure.
The PAC’s chairman, John Sowinski, who also heads the more bluntly named No Casinos group, previously told Law360 that the ballot initiative is effectively a backup plan to an ongoing legal fight in the state’s top court in which No Casinos is arguing that the Florida Constitution already prohibits most forms of gambling unless approved by voters through a constitutional amendment.
A recent appeals court decision involving Gretna Racing LLC’s application for slot machines put that position in jeopardy, Sowinski said. The Florida Supreme Court certified the Gretna case after a state appeals court reversed course and concluded that an amendment to the state’s slot machine statute requires additional laws to be enacted before other counties can hold referendums on legalizing slot machines.
The Voters in Charge initiative made it before the high court on a petition filed by Attorney General Pam Bondi, which she was statutorily required to file after the PAC collected 10 percent of the 683,149 valid signatures to make it onto the 2016 general election ballot. Bondi’s May 6 petition noted that the initiative was already ineligible for this year’s ballot, so the soonest it could appear would be on the Nov. 6, 2018 ballot.
Both opposition groups also filed requests for the Supreme Court to hold oral arguments on the matter.
Sowinski told Law360 on Monday that the group will provide specific responses to the opposition briefs in its reply brief.
“Suffice it to say we believe that the opponents’ arguments are without merit, and we are confident that our amendment meets all ballot title, summary and single-subject requirements needed for ballot placement,” he said. “It is written in clear and unambiguous language, and embraces only one subject.”
Floridians for Clarity in Gaming Control is represented by Marc W. Dunbar, Daniel R. Russell and Daniel J. McGinn of Jones Walker LLP.
The pari-mutuel opponents are represented by John M. Lockwood, Thomas J. Morton and Kala Kelly Shankle of The Lockwood Law Firm.
Voters in Charge is represented by Dan Gelber, Adam M. Schachter and Freddy Funes of Gelber Schachter & Greenberg PA.
The case is Advisory Opinion to the Attorney General Re: Voter Control of Gambling in Florida, case numbers SC16-778 and SC16-871, in the Supreme Court of Florida.
–Editing by Aaron Pelc.