November 11, 2011
Lots More Slots?
Practice Group(s):
By Anthony R. Holtzman, Robert M. Kritzman and Linda J. Shorey
Betting & Gaming
Florida Appellate Court Rules That State Constitutional
Provision Does Not Limit Overall Number of Slots Facilities
The Florida Court of Appeal, on October 6, 2011, concluded that a Florida statute is valid even though
it authorizes slot machines at entities other than those described in Article 10, Section 23 of the state’s
constitution. The court’s decision may pave the way for the expansion of casino gaming in Florida.
Whether it does so will depend, in part, on whether the Florida Supreme Court grants a pending
request for it to review the decision and, if so, how it rules.
Article 10, Section 23 of the Florida Constitution provides: "The governing bodies of Miami-Dade
and Broward Counties each may hold a county-wide referendum in their respective counties on
whether to authorize slot machines within existing, licensed pari-mutuel facilities (thoroughbred and
harness racing, greyhound racing, and jai-alai) that have conducted live racing or games in that county
during each of the last two calendar years before the effective date of this amendment." Fla. Const.
Art. X, §23(a). The section goes on to state: "If the voters of such county approve the referendum
question by majority vote, slot machines shall be authorized in such pari-mutuel facilities." Id.
The voters of Broward County, in 2005, approved slot machines by a county-wide referendum and, in
2008, the voters of Miami-Dade County did the same. During the period between these approvals, the
Florida Legislature, in 2005, enacted Section 551.101 of the Florida Statutes, which, tracking the
language of Article 10, Section 23, provided that a facility was eligible to operate slot machines if it
was a "licensed pari-mutuel facility located in Miami-Dade County or Broward County existing at the
time of adoption of s. 23, Art. X of the State Constitution that has conducted live racing or games
during calendar years 2002 and 2003 and has been approved by a majority of voters in a countywide
referendum to have slot machines at such facility in the respective county." Fla. Stat. §551.102(4)
(2005). In 2009, however, the Florida Legislature amended the description of eligible facilities to
include not only those that Section 551.101 had identified in 2005, but also a number of other facilities
that meet certain criteria, which vary somewhat between two statutorily-defined classifications of
counties.
The Legislature's change prompted a lawsuit. Florida Gaming Centers, Inc., West Flagler Associates,
Ltd., and Calder Race Course Inc. challenged the 2009 amendment in court. They argued that,
because it authorizes slots at facilities other than those described in Article 10, Section 23, the
amendment is unconstitutional. The trial court disagreed. And, on appeal, so did the Court of Appeal
(First District). See Florida Gaming Centers, Inc. v. Florida Dep't of Bus. And Prof'l Reg., 2011 Fla.
App. LEXIS 15773 (Fla. Ct. App. Oct. 6, 2011).
In reaching its decision, the Court of Appeal invoked the principle of constitutional construction that
"[t]he legislative branch looks to the Florida Constitution not for sources of power but for limitations
upon power." Id. at *7 (internal quotation and brackets omitted). With this point as a backdrop, the
court explained that "[t]he Legislature has broad discretion in regulating and controlling pari-mutuel
wagering and gambling under its police powers." Id. Therefore, according to the court, "the only
thing that Article X, section 23 limited was the Legislature's authority to prohibit slot machine gaming
Lots More Slots?
in certain facilities in the two [identified] counties." Id. The court stressed: "Contrary to Appellants'
position, Article X, section 23 provides no indication that Florida voters intended to forever prohibit
the Legislature from exercising its authority to expand slot machine gaming beyond those facilities in
Miami-Dade and Broward Counties meeting the specified criteria." Id.
The Court of Appeal's decision, according to news reports, is being applauded by some Florida
legislators for removing the constitutional uncertainty surrounding legislative proposals to expand
casino gaming in Florida. Among them are Representative Erik Fresen (R-Miami) and Senator Ellyn
Bogdanoff (R-Fort Lauderdale), who have introduced bills that would, among other things, authorize
additional resort-casinos to be built in Miami-Dade and Broward Counties without voter pre-approval
and create a Florida Department of Gaming Control to regulate gambling in the state. These bills may
well have traction in the wake of the Court of Appeal's decision. So, too, may any similar slotsexpansion bills that are introduced in the Florida Legislature. This is especially so given that, as with
many other states, expanded casino gaming is being considered as a means of boosting Florida’s
economy.
What remains to be seen, however, is whether the Florida Supreme Court will review, and, if so,
affirm or reverse the Court of Appeal's decision. On November 1, 2011, the entities who brought the
challenge under Article 10, Section 23 asked the Supreme Court to hear an appeal. The fact that the
case involves a constitutional issue that pertains to a matter of great public importance (i.e., the scope
of casino gaming in Florida) increases the likelihood that the Supreme Court will grant the request.
Authors:
Anthony R. Holtzman
anthony.holtzman@klgates.com
+1.717.231.4570
Robert M. Kritzman
robert.kritzman@klgates.com
+1.305.539.3303
Linda J. Shorey
linda.shorey@klgates.com
+1.717.231.4510
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