It has become increasingly clear that the Legislative stalemate over the future of gambling in Florida will not be ended by lawmakers, but by the entity that has done more to disrupt the the GOP-controlled branch: the courts.
House and Senate leaders conceded Monday that years of Legislative stalemate over the future of slot machine expansion in Florida -- including whether Miami-Dade will be home to additional casinos -- may come to an end not because of their actions but because the courts have forced their hand.
Lawmakers convened a conference committee Monday to work out the differences between their vastly different gambling bills aimed at renewing the gambling compact with the Seminole Tribe. But in the process they concluded that no matter what they do, a series of court rulings may be driving the train.
Sen. Bill Galvano, R-Bradenton, a lawyer who helped negotiate the current compact with the Tribe, said that he thinks the dissenting opinion in a related case issue last week is the latest clue the court is ready to overrule the Legislature's position that it has final say over expanding gambling in Florida.
The dissent, related to a proposed constitutional amendment requiring voter approval for any casino expansion, came from one of the two most conservative members of the Florida Supreme Court, Justice Ricky Polston.
Polston was considered "a no-vote on the referendum counties to keep their slots," Galvano explained, but his dissenting opinion could shine light on a ruling lawmakers have been awaiting for nearly 11 months: whether a struggling race track in the impoverished North Florida town of Gretna is entitled to slot machines because voters approved a countywide referendum in 2012.
The ruling will have precedent-setting power by determining whether or not voters can expand gambling without legislative authority and, Galvano speculated, it appears as if the court has decided voters are in control.
"One can almost glean from the dissent that it's a fait accompli just pending in the court,'' he told members of the gambling conference at its first meeting on Monday. "I don't want to put words in the court's future opinion but those are the type things that we need to be aware of.”
Galvano said a reading of the opinions indicates that the court may have concluded that slot machines are not only allowed in the 10 counties that have conducted voter referendums to approve them, but that they may not be allowed if a county has not approved them -- such is the case at Hialeah Racetrack, in which the Legislature, not the voters, approved the slot machine expansion.
The court heard oral arguments in June over the issue and has still not ruled.
Galvano admits it's an attempt to read the tea leaves on a case the court heard oral arguments about in June but has still not ruled.
"All of these things play into the big picture,’’ he said, adding that Polston's dissent reads as if he has accepted that voter-approved slot machines across the state are "existing."
The proposed constitutional amendment is being backed by No Casinos, an Orlando-backed group that does not reveal its financing. The amendment would ask voters in November 2018 to require statewide approval for any casino expansion in the state. The proposed language would give voters the "exclusive right to decide whether to authorize casino gambling" in the state.
The Senate has long contended that lawmakers have the authority to expand gaming in Florida while the House is arguing that it supports requiring voters statewide to approve any new casinos.
“In the House, we would see the constitutional amendment as a compliment to what we are trying to do,’’ said Rep. Jose Felix Diaz, R-Miami, the House's leading negotiator on the gambling conference committee.
The Supreme Court approved the language of the amendment in a 4-2 decision, with Chief Justice Jorge Labarga and Justices Barbara Pariente, Peggy Quince and Charles Canady in the majority and justices Ricky Polston and R. Fred Lewis dissenting. Justice Alan Lawson, who joined the court at end of December, did not take part.
In his dissent, Polston argued that the proposal is misleading and violates the single-subject requirement. He said it fails to fully inform voters about its possible effects on a 2004 constitutional amendment that authorized slot machines in Miami-Dade and Broward counties. Under that amendment, local voters also had to approve the slot machines.
"The initiative is placing voters in the position of deciding between a preference for controlling the expansion of full-fledged casino gambling and Florida's current legal gaming landscape," Polston wrote.
But the majority disagreed and said the ballot language was clear enough to go on the ballot.
"The opponents primarily argue that the initiative should not be placed on the ballot because it is unclear whether, if passed, the amendment would apply retroactively and what effect, if any, the amendment would have on gambling that is currently legal in Florida --- including gambling that was previously authorized by general law rather than by citizens' initiative," the majority wrote.
Diaz acknowledged that numerous court rulings over the last few years have been nipping away at the compact the state has signed with the Seminole Tribe by allowing gambling to expand without legislative approval, provoking lawmakers to act this year.
“There’s too many lawsuits out there. We have to act,’’ he said.
Galvano repeated the Senate’s desire to negotiate a comprehensive gambling package rather than just address the compact.
“Every point is a leverage point for one component of the industry, including the Seminoles, and that’s the only way we’ll get done,’’ he said.
The bills before the House and Senate attempt to not only renew the compact, but address court rulings that have left the state’s already-frayed gaming laws in tatters. The Senate bill, SB 8, opens the door to massive expansion of slot machines and Indian gaming, while the House bill, PCB TGC 17-01, continues to give the Seminole Tribe the exclusive right to slot machines outside of Miami-Dade and Broward and blackjack at their South Florida casinos but demands more money than they are paying now in exchange -- $3 billion over seven years.
"There's still plenty of threats out there and we're constantly playing a game of catch-up,'' Diaz said.
The Seminole Tribe has said that it would not agree to either approach because the Senate allows for more competition than it believes should be allowed in exchange for payments to the state while the House asks for too much money in exchange for what is essentially the status quo.
On Monday, Galvano said the Senate was prepared to make some minor changes to its own gambling bill by including a provision to require that the state be given 24 months to pass legislation to remedy any alleged violation in the Tribe’s compact with the state.
The Senate also agreed to provide more flexibility if the Seminole Tribe of Florida objected to allowing an additional casino in Broward, by instead suggesting that the two new casinos it wants to authorize for South Florida could both be located in Miami-Dade or Broward, a shift from the current bill which says each county may get only one new casino.
The Tribe has objected to the competition in Broward and "that gives us the flexibility without losing the revenue,'' Galvano explained.