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Justices Look at Semantics, 'Common Sense' in Slots Fight

June 7, 2016 - 4:30pm

In a case that could have broad implications for the state's gambling footprint, a tiny horse track on Tuesday tried to convince Florida Supreme Court justices that it should have slot machines, even without the express approval of the Legislature.

Marc Dunbar, a lawyer and part-owner of Gretna Racing in Gadsden County, relied on a semantic analysis to try to persuade the justices that a 2009 state law gave the track permission to let voters decide whether slots should be allowed at the pari-mutuel.

The Supreme Court's ruling will likely affect gambling operations in Gadsden and at least five other counties --- Brevard, Hamilton, Lee, Palm Beach and Washington --- where voters have also approved referendums authorizing slots at local pari-mutuels.

The Gretna case hinges on the parsing of a 2009 law establishing eligibility for slot machines at pari-mutuels. The 2009 law, which went into effect the following year, was an expansion of a 2004 voter-approved constitutional amendment that authorized slot machines at seven existing horse and dog tracks and jai-alai frontons in Broward and Miami-Dade counties.

The 2009 change allowed a Hialeah track, which wasn't operating at the time the amendment was approved, to also operate the lucrative slots. The law in question consists of three clauses, including one that deals with "any licensed pari-mutuel facility in any other county," outside of Broward and Miami-Dade.

Dunbar insisted that the "third clause" gave permission to counties to hold referendums to allow slots at local pari-mutuels.

"It's very clear," Dunbar said. "The Legislature knows the words it uses, and uses them intentionally."

But Deputy Solicitor General Jonathan Williams, representing the state, argued that lawmakers had no intention of such a massive expansion of gambling when they crafted the statute.

"The Legislature did not intend to legalize slot machines statewide" when it changed the law, Williams argued. The 2009 law allows counties outside Miami-Dade and Broward to legalize slot machines only if the Legislature or a constitutional amendment gives them permission, he said.

But several of the justices were troubled by both explanations of what lawmakers --- historically averse to expanding gambling --- meant when they crafted the statute.

Dunbar's interpretation would amount to "a huge turn for the Legislature," Justice Barbara Pariente said.

"Which is to basically say in 65 other counties, you just have to have a referendum, and you're fine," she said. "This would have been a very, very significant expansion of slot machines … and there is nary a mention in the legislative record of this kind of change."

At the same time, Pariente, along with Justice R. Fred Lewis, seemed perplexed by the state's suggestion that the lawmakers' language did not authorize counties to do anything.

"If it's creating this false sense that other counties can do this, why would it be in there?" Pariente said. "It just seems bizarre that that would be what the Legislature intended."

Lewis appeared to dismiss the parsing of the statute.

"We can get all wrapped up in all the words and phrases and need an English professor to tell us what these things mean," Lewis said.

"If we said that it's an eligible facility, but you can't get a license, this whole thing makes no sense. Don't we have to make some common sense with this whole thing that we're faced with?" Lewis asked.

But the Supreme Court "is the place where words are interpreted," Dunbar said.

"That's where policy arguments are made," he said, pointing toward the Capitol building across the street from the Supreme Court.

Tuesday's arguments came after the 1st District Court of Appeal overturned itself in October and ruled in a 2-1 decision that the Northwest Florida racetrack cannot have slot machines without the authorization of the Legislature, despite county voters' approval.

The majority in the October ruling sided with Attorney General Pam Bondi and Gov. Rick Scott's administration, which sought a rehearing after a 2-1 ruling last spring in favor of Gretna Racing.

In both decisions, the appellate judges asked the Florida Supreme Court to weigh in on the issue of whether pari-mutuels can have slot machines if local voters approve, or if the games require the express say-so of the Legislature.

"The Legislature obviously was only dealing with Dade and Broward. That's what they were dealing with. Nobody was standing up and having a debate about 65 other counties. If that had happened, I know a couple of my colleagues' heads would have exploded,” Dan Gelber, a state senator at the time the law passed, told reporters after the hearing.

Gelber, a lawyer, represents former Gov. and U.S. Sen. Bob Graham, who filed a friend-of-the-court brief in the case, arguing that Florida's Constitution requires a statewide vote for slots outside of Miami-Dade and Broward counties.

The Gretna facility, owned by the Poarch Creek Indians and a handful of investors, has been in the spotlight since its inception. Florida officials granted the track the country's first pari-mutuel license for rodeo-style barrel racing, but a court later decided that gambling regulators erred when they awarded the license.

Gambling regulators in 2014 denied a slots license for the track, built to accommodate slot machines and which also operates a cardroom.

A Supreme Court decision in favor of Gretna would not only affect pari-mutuels in other counties, but could shrink state coffers.

Under a 20-year agreement finalized in 2010 between the Seminole Tribe of Florida and the state, the tribe has exclusive rights to operate slot machines outside of pari-mutuels in Broward and Miami-Dade counties. The state reaps about $120 million a year from the revenue-sharing agreement.

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