Control the Casinos and Stop the Dogs: Florida's 2018 Proposed Constitutional Amendments

I. Introduction

On Tuesday, November 6, 2018, Floridians will head to the polls to cast their votes for numerous offices. ¹ While in the ballot booth, they also will be confronted with 13 amendments to the state constitution. ² Two of them—Amendment 3 (casinos) and Amendment 13 (dog racing)—concern gambling. If either or both pass, Florida's betting landscape will be radically altered. Accordingly, this brief article provides a description of these proposals.

II. Florida's Constitutional Framework

Florida's current constitution—its sixth overall—was adopted in 1968. ³ Today, it contains four provisions dealing with gambling: 1.

Article X, § 7 bans all lotteries. ⁴ In doing so, it also creates an exception for pari‐mutuel betting on dog races, horse races, and jai‐alai matches. ⁵

Apart from these restrictions, the Florida Legislature is free to do as it pleases when it comes to gambling. The one caveat, of course, is that wagering that is regulated by Congress—such as Indian, ⁹ Internet, ¹⁰ and shipboard ¹¹ betting—largely is outside the state's jurisdiction. ¹²

Pursuant to the foregoing, Florida's lawmakers have enacted a detailed gambling code, which now is codified as Chapter 849 of the Florida Statutes. ¹³ Its heart is § 849.08: “Whoever plays or engages in any game at cards, keno, roulette, faro or other game of chance, at any place, by any device whatever, for money or other thing of value, shall be guilty of a misdemeanor of the second degree[.]” ¹⁴

The remainder of the code can be divided into two parts. While most of it implements the ban on gambling created by § 849.08, in a few instances it carves out an exception. Thus, for example, § 849.07 makes it a misdemeanor to bet on billiards, but § 849.085 exempts low stakes (defined as less than $10 a hand) card games. ¹⁵

III. Proposed Amendment 3

Over the years, various citizen groups have attempted to add a casino provision to the Florida Constitution. ¹⁶ None have succeeded.

In 1978, Amendment 9, entitled “Casino Gambling,” lost by a 3–1 margin (1,720,275 to 687,460). ¹⁷ Had it passed, it would have authorized casinos along the beaches in Broward and Dade ¹⁸ counties. ¹⁹ The taxes generated by these enterprises would have gone “for the support and maintenance of the free public schools and local law enforcement.” ²⁰

In 1982, a proposal entitled “Local Government” failed to make the ballot. ²¹ Had it been adopted, it would have ensured, in the event that Florida ever did legalize casinos, that each county would be allowed to decide for itself whether it wanted them. ²²

In 1984, a proposal entitled “Additional Forms of Gambling Authorized” failed to make the ballot. ²³ It would have permitted every hotel in Dade County that had at least 350 rooms to have a casino. ²⁴ Other counties would have had the option of extending the same privilege to their hotels, so long as they also had at least 350 rooms. ²⁵

In 1986, Amendment 2, entitled “Casino Gambling Authorized Subject to County Option,” lost by more than a million votes (2,237,555 to 1,036,250). ²⁶ Had it passed, it would have allowed any hotel that had at least 500 rooms to have a casino if its county approved. ²⁷

In 1994, Amendment 8, entitled “Limited Casinos,” lost by nearly a million votes (2,555,492 to 1,566,451). ²⁸ Had it passed, it would have allowed Duval (Jacksonville), Escambia (Pensacola), Hillsborough (Tampa), Lee (Fort Myers), Orange (Orlando), Palm Beach (Palm Beach), and Pinellas (St. Petersburg) counties to each have one casino; Broward County to have two casinos; Dade County to have three casinos (with two in Miami Beach and the third elsewhere in the county); every pari‐mutuel facility to have a casino (limited to 75,000 feet); and five additional counties (to be selected by the legislature) to each have one riverboat with a casino no larger than 40,000 feet. ²⁹

At the same time as Amendment 8, two other proposals failed to make the ballot. The first, entitled “Casino Authorization, Taxation and Regulation,” was much more liberal. ³⁰ It would have let the voters of any county or Tourist Development Council district authorize casinos on commercial vessels and riverboats, within existing pari‐mutuel facilities, and at hotels. ³¹

The second, entitled “Limited Gaming and Casinos,” was more cautious. ³² It would have let counties authorize gambling on “State Regulated, privately owned Riverboats and on U.S. registered commercial vessels,” allowed casinos of up to 75,000 feet in all existing pari‐mutuel facilities, and created three “gaming and casino districts,” with one straddling northern Dade and southern Broward counties and the other two at locations designated by the legislature. ³³

In 1996, a proposal entitled “Authorization for and Regulation of Statewide System of Limited‐Access Riverboat Gambling Casinos” failed to make the ballot. ³⁴ Had it succeeded, it would have allowed the legislature to license up to 21 riverboats, with no more than four in any one county, and used the taxes generated by them “for law enforcement, prisons, economic development, and … distribution to local governments.” ³⁵ In addition to giving counties and cities the right to opt out, the measure required the vessels to have an “appropriate local theme,” be newly constructed, be ecologically friendly, and charge patrons an admission fee and limit their playing time. ³⁶

Lastly, in 1998, a proposal entitled “Florida Locally Approved Gaming” failed to make the ballot. ³⁷ It would have permitted the state to authorize a total of 20 casinos, in either hotels or riverboats, with no more than 10 casinos on riverboats. ³⁸ All counties with at least 500,000 residents were guaranteed a hotel casino license; no riverboat could be located in a county with less than 200,000 residents; and all counties and cities were given the right to opt out. ³⁹

Having been repeatedly shot down, casino proponents in 2000 decided to try a new tack. As a result, they focused on getting slot machines into existing pari‐mutuel facilities. When this effort came up short in 2002, ⁴⁰ they retooled their proposal so that it applied only to Broward and Miami‐Dade counties, historically the state's two most pro‐gambling counties. This strategy turned out to be a winning one, as voters approved Amendment 4 in 2004. ⁴¹

The 2006 election of Charlie Crist as Florida's 44th governor ushered in a more liberal approach to gambling in Tallahassee, and in 2010, the state, after refusing to negotiate with the Seminole Indians for two decades, signed a compact with the tribe allowing it to have Class III games. ⁴² Shortly thereafter, the Genting Group purchased 14 acres of prime waterfront real estate in Miami (the former home of the Miami Herald) and began lobbying the legislature for permission to build the world's largest casino (“Resorts World Miami”). When the company explained that it was planning to invest $3 billion in the project and expected it to create 100,000 permanent jobs and generate $250 million in annual taxes, the Florida Legislature began to listen. ⁴³ It also commissioned Spectrum Gaming Group to look into the feasibility of turning Florida into a new Las Vegas. In 2013, the firm issued a 708‐page report that found the prospect both practical and desirable. ⁴⁴

Despite the excitement generated by Genting's proposal and Spectrum's report, the Florida Legislature has been unable to pass a “destination casinos” ⁴⁵ bill, although it has come close on several occasions and nearly succeeded in 2018. ⁴⁶ The possibility of such a bill becoming law greatly concerns Disney and the Seminole Indian tribe, both of which are opposed to any expansion of gambling in Florida. ⁴⁷ As a result, they have joined forces and now are taking their fight directly to the public via Amendment 3, better known as the “Florida Voters in Charge of Future Gambling Expansion” amendment. ⁴⁸

In the pertinent part, Amendment 3 reads as follows:

(a) This amendment ensures that Florida voters shall have the exclusive right to decide whether to authorize casino gambling in the State of Florida. This amendment requires a vote by citizens' initiative pursuant to Article XI, section 3, in order for casino gambling to be authorized under Florida law. This section amends this Article; and also affects Article XI, by making citizens' initiatives the exclusive method of authorizing casino gambling.

(b) As used in this section, “casino gambling” means any of the types of games typically found in casinos and that are within the definition of Class III gaming in the Federal Indian Gaming Regulatory Act, 25 U.S.C. § 2701 et seq. (“IGRA”), and in 25 C.F.R. §502.4, upon adoption of this amendment, and any that are added to such definition of Class III gaming in the future. This includes, but is not limited to, any house banking game, including but not limited to card games such as baccarat, chemin de fer, blackjack (21), and pai gow (if played as house banking games); any player‐banked game that simulates a house banking game, such as California black jack; casino games such as roulette, craps, and keno; any slot machines as defined in 15 U.S.C. 1171(a)(1); and any other game not authorized by Article X, section 15, whether or not defined as a slot machine, in which outcomes are determined by random number generator or are similarly assigned randomly, such as instant or historical racing. As used herein, “casino gambling” includes any electronic gambling devices, simulated gambling devices, video lottery devices, internet sweepstakes devices, and any other form of electronic or electromechanical facsimiles of any game of chance, slot machine, or casino‐style game, regardless of how such devices are defined under IGRA. As used herein, “casino gambling” does not include pari‐mutuel wagering on horse racing, dog racing, or jai alai exhibitions. For purposes of this section, “gambling” and “gaming” are synonymous. ⁴⁹

Since 2006, the Florida Constitution has required proposed amendments to be approved by at least 60% of the voters. ⁵⁰ Even with this high threshold, Amendment 3 stands a good chance of passing. First, early polling has found that voters favor it. ⁵¹ Second, it has no organized opposition. ⁵²

Obviously, if Amendment 3 becomes law, it will spell the end of the effort to bring destination casinos to Florida. It also will mean that the Florida Legislature will no longer have the ability to shape the state's overall gambling policy. Instead, every proposed change will have to go through the cumbersome citizen petition process. ⁵³ As others have noted, this will put Florida's gambling operators in an unenviable position:

“It's game over for the Legislature if that (constitutional) amendment … passes. And at that point, we'll just be spectators in the world of gaming, which will essentially be a monopoly for the Seminole Tribe,” Sen. Bill Galvano, a Bradenton Republican who has been instrumental in gambling‐related legislation for eight years, told the News Service on Wednesday.

Industry representatives also foreshadowed dire consequences if the constitutional amendment passes.

“I think it will have a huge impact on our industry, because as opposed to the Legislature regulating us, we'll need 60 percent of the residents of Florida to regulate us in the future. And, as the most regulated business in the state, that just makes anything we want to do to grow our business in the future more difficult,” Izzy Havenick, whose family owns dog tracks in Naples and Miami, said in an interview. … 

Nick Iarossi, a lobbyist who represents numerous gambling operators, said the proposal would have a chilling effect on the industry.

“The fear that they all have is that, if this No Casinos amendment passes in November, we will never have that opportunity without a statewide approval to add new product, whether it be slots or otherwise. And to try to get that approval statewide when you have Disney and the Seminole Tribe with their monopoly putting money in against any type of expansion you place on the ballot, it's going to be impossible to get those votes with the 60 percent threshold,” he said. ⁵⁴

Lastly, it is possible that Amendment 3 could be construed by the courts to apply to sports betting. ⁵⁵ If this were to occur, it would make the legalization of such betting in Florida nearly impossible, because such betting then would require a statewide referendum and a 60% positive vote. ⁵⁶

IV. Proposed Amendment 13

Every 20 years, the Florida Constitution requires the appointment of a Constitution Revision Commission (CRC). ⁵⁷ The job of the CRC is to “examine the constitution of the state, hold public hearings, and, not later than one hundred eighty days prior to the next general election, file with the custodian of state records its proposal, if any, of a revision of this constitution or any part of it.” ⁵⁸ Having last convened in 1997–98, ⁵⁹ a new CRC began meeting on March 20, 2017. ⁶⁰ On October 31, 2017 (the last day to do so), CRC Commissioner Tom Lee ⁶¹ asked for a ban on dog racing. ⁶²

As finally adopted by the CRC on April 16, 2018, Lee's suggestion—originally Proposal 67, later re‐designated Proposal 6012, still later called Revision 8, and now on the ballot as Amendment 13 ⁶³ —reads as follows:

The humane treatment of animals is a fundamental value of the people of the State of Florida. After December 31, 2020, a person authorized to conduct gaming or pari‐mutuel operations may not race greyhounds or any member of the Canis Familiaris subspecies in connection with any wager for money or any other thing of value in this state, and persons in this state may not wager money or any other thing of value on the outcome of a live dog race occurring in this state. The failure to conduct greyhound racing or wagering on greyhound racing after December 31, 2018, does not constitute grounds to revoke or deny renewal of other related gaming licenses held by a person who is a licensed greyhound permitholder on January 1, 2018, and does not affect the eligibility of such permitholder, or such permitholder's facility, to conduct other pari‐mutuel activities authorized by general law. By general law, the legislature shall specify civil or criminal penalties for violations of this section and for activities that aid or abet violations of this section. ⁶⁴

Dog racing in Florida began in 1922; ⁶⁵ by 1927, dog tracks were operating in Miami, Miami Beach, Orlando, and St. Petersburg. ⁶⁶ In 1931, Florida became the first state to allow pari‐mutuel betting on dog races. ⁶⁷

At its peak in 1989, dog racing was sanctioned by 19 states. ⁶⁸ Today, however, dog races are held in just six states: Alabama, Arkansas, Florida, Iowa, Texas, and West Virginia. ⁶⁹ Collectively, these jurisdictions have 18 dog tracks, although the bulk (12) are located in Florida. ⁷⁰

As the sport's popularity has declined, so has its contributions to Florida's treasury:

In fiscal year 1988, the total handle—the aggregate amount of bets taken—for dog racing in Florida was $1.02 billion, according to the state's yearly report. It brought in $80.59 million in taxes for the state.

By contrast, in fiscal year 2016—the last for which numbers are available—wagering on greyhound races amounted to $239.92 million. The state got $2.85 million in taxes and fees. ⁷¹

In addition to no longer being lucrative, ⁷² dog racing has come under increasing attack by animal rights activists:

[Florida] Attorney General Pam Bondi, who has made dog‐adoption efforts part of the opening of each state Cabinet meeting, called greyhound racing and the treatment of the dogs a “black eye on our state.”

“We all know these dogs end up with broken legs, serious injuries and they're shipped from track to track until they're dead or can no longer race at all,” said Bondi, who is a member of the Constitution Revision Commission. … 

[CRC] Commissioner Don Gaetz … said … that state lawmakers have been unable to act on various issues about greyhound racing.

“We've tried to get bills passed on injury reporting. We've tried to get bills passed on doping,” said Gaetz, a former state Senate president from Niceville. “And every time we have, there are fine and good people in this industry, but the mass of the industry has come forward with their lobbyists to do everything they could to stop them from reforming themselves and [to] stop the reasonable regulation of the industry.” ⁷³

While many Floridians back Amendment 13, ⁷⁴ on May 17, 2018, the Florida Greyhound Association (FGA) ⁷⁵ filed a lawsuit in Leon County (Tallahassee) circuit court to have it struck from the ballot:

Among the shortcomings alleged by the plaintiffs: The proposal does not advise voters that dog tracks still would be allowed to broadcast live greyhound races from other states. And the measure would only ban “commercial” dog racing, which means that kennel clubs would be allowed to continue dog competitions, the complaint says.

The lawsuit also alleges that the text of the proposal—which voters won't see on the ballot [due to space limitations]—could have implications far beyond the greyhound‐racing industry.

The proposed amendment says the “humane treatment of animals is a fundamental value of the people of the State of Florida.”

That language “might ultimately apply to animals other than dogs,” plaintiffs' lawyers Jeff Kottkamp, a former lieutenant governor, and Paul Hawkes, a former appellate judge, wrote in the 17‐page complaint. ⁷⁶

Although Judge Karen A. Gievers initially scheduled a bench trial for July 26, 2018, ⁷⁷ on June 29, 2018 she cancelled it and announced plans to rule on the parties' papers. ⁷⁸ Regardless of what she decides, almost everyone believes the case will end up at the Florida Supreme Court. ⁷⁹

In the meantime, a tough fall campaign already is taking shape. ⁸⁰ Two competing citizens groups have been established, ⁸¹ with the “Yes on 13” group calling itself the “Committee to Protect Dogs” ⁸² and the “No on 13” group using the name “Committee to Support Greyhounds.” ⁸³ In previewing the expected battle, one observer has written:

Opponents [to dog racing] have an internet advertisement that goes right for the heart.

“Every three days, a greyhound like this one dies on a racetrack in Florida,” says a voice in the ad, over scenes showing dogs stumbling on a track. “Death comes from cardiac arrest, broken necks, broken legs and other injuries. Nearly 500 greyhound dogs have died in Florida since 2013.”

This pitch is spliced with quick‐cut shots of beautiful, friendly dogs curiously nosing the camera lens—when not confined to small steel‐mesh cubicles. The web site protectdogs.org lists scores of facts and figures about the greyhound industry—which may or may not be accurate—but the totality of the message is aimed at the emotions, not the mind.

The Committee to Protect Dogs, which sponsored the internet site, reported campaign contributions of $55,575 so far, all of it from an “animal advocacy group” called Grey2K USA in Arlington, Va. The political group is aligned with the Humane Society of the United States.

If it doesn't succeed in scratching Amendment 13 in court, the racing industry still has some political advantages. It only needs 40 percent (plus one) to defeat the proposal at the polls, which means the proponents need one and a half “yes” votes for every “no” the opponents can muster. There will probably be some people who will just vote against all the constitutional amendments.

But being at the back of the pack can also work the other way. “Voter fatigue”—the drop‐off of interest when the ballot is long and not exactly fascinating—could lower the total turnout on Amendment 13. That gives both sides a smaller number to shoot for. ⁸⁴

Because of the way it is written, Amendment 13 does not close Florida's dog tracks. Instead, it “decouples” them. In other words, while they will no longer be allowed to hold races, they still will be allowed to have card rooms (and, in Broward and Miami‐Dade counties, slot machines). ⁸⁵ This has been the long‐time goal of most of Florida's pari‐mutuel facilities, whose profits would soar if they could rid themselves of their dogs, horses, and jai‐alai players. ⁸⁶

Thus, if Amendment 13 wins, the Florida Legislature is likely to be heavily lobbied by both horse tracks and jai‐alai frontons for laws decoupling their facilities. ⁸⁷ The Florida Legislature also is likely to be lobbied by dog breeders, dog track workers, and anyone else who loses their job due to Amendment 13. According to Jack Cory, the FGA's chief lobbyist, Amendment 13 will “cost 3,000 direct jobs [and] 10,000 indirect jobs[.]” ⁸⁸

A successful Amendment 13 campaign also may prompt horse tracks and jai‐alai frontons to sponsor their own constitutional amendments. It thus does not seem farfetched to believe that if dog racing is outlawed, horse racing and jai‐alai likewise could disappear from Florida.

V. Conclusion

Despite officially being opposed to gambling, ⁸⁹ Florida historically has been a leader in the field ⁹⁰ and today relies heavily on wagers to fund its state budget. ⁹¹ Yet after years of steadily increasing its bets, ⁹² 2018 might just be the moment that Florida decides to take a step back.

VI. Postscript

After this article was sent out for typesetting, two significant developments occurred. First, the pari‐mutuel industry belatedly organized a political committee to oppose Amendment 3. ⁹³ Second, on August 1, 2018, Judge Gievers ruled that Amendment 13 was invalid and struck it from the ballot. ⁹⁴ Within 48 hours, the State of Florida had appealed the decision to the First District Court of Appeal in Tallahassee and both sides had requested an immediate transfer to the Florida Supreme Court (as permitted by Article V, § 3(b)(5) of the Florida Constitution). ⁹⁵