by David G. Shields
Casino gambling, including its predominant activity — slot machines — has been the subject of considerable debate in the Florida Legislature. But does the legislature have the constitutional authority to permit slot machines throughout Florida? There would seem to be a direct answer to this question from a 1970 Florida Supreme Court case that explicitly confirmed Fla. Const. art. X, §7 (1968) bans slot machines:
Obviously, the makers of our 1968 Constitution recognized horse racing as a type of lottery and a “pari-mutuel pool” but also intended to include in its sanction those other lotteries then legally functioning; namely, dog racing, jai alai and bingo. All other lotteries including bolito, cuba, slot machines, etc., were prohibited.1
Greater Loretta Imp. Ass’n v. State ex rel Boone, 234 So. 2d 665 (Fla. 1970), holds slot machines constitute lotteries and they are prohibited under the 1968 Constitution. A 2004 constitutional amendment, art. X, §23, allows for some slot machines, but only in Broward and Miami-Dade counties and only under certain conditions.
On October 6, 2011, the First District Court of Appeal, without addressing either art. X, §7 or Greater Loretta, ruled in Florida Gaming Ctrs., Inc. v. Florida Dept. of Bus. & Prof’l Reg., 71 So. 3d 226 (Fla. 1st DCA 2011), that the legislature has the authority to expand slot machine gambling beyond the facilities in Broward and Miami-Dade counties meeting the criteria of art. X, §23. There would appear to be a serious conflict between Greater Loretta and Florida Gaming, which this article aims to address.
Two Constitutions, Two Different Anti-lottery Provisions
Florida’s constitutions have prohibited lotteries since shortly after the Civil War, but the anti-lottery provision of the 1968 Constitution is significantly different from its predecessors. This difference is crucial to the discussion that follows and, thus, it is important to place these provisions side-by-side. Fla. Const. art. III, §23 (1885) reads: “Lotteries are hereby prohibited in this [s]tate.”2 Fla. Const. art. X, §7 (1968) reads: “Lotteries. — Lotteries, other than the types of pari-mutuel pools authorized by law as of the effective date of this constitution, are hereby prohibited in this state.”
According to Greater Loretta, the 1885 provision prohibited lotteries without providing any definition of a lottery, allowing the legislature leeway in applying the term statutorily.3 In contrast, the 1968 Constitution 1) provides lotteries are inclusive of pari-mutuel pools; 2) grandfathers lawfully existing pari-mutuel pools in 1968; and 3) bans pari-mutuel pools, including slot machines, which were not lawfully existing in 1968.4
The new phrase in the 1968 Constitution concerning pari-mutuel pools necessarily expanded the constitutional definition of lotteries to include pari-mutuel pools. Otherwise, the new phrase would be superfluous; the phrase would exclude something already excluded in the term “lotteries.” As explained in Unrah v. State, 669 So. 2d 242, 245 (Fla. 1996), courts should avoid readings that would render part of a statute meaningless and related provisions of a statute must be construed in harmony with one another.
Greater Loretta defines “pari-mutuel pool” as a system of betting in which those who bet on the winner share the total stakes minus a small percent for the management.5 Under this definition, slot machines operate as pari-mutuel pools. Patrons insert their coins or pay for other means to access the machines, management keeps its percentage of the take, and the balance is paid to the winning patrons.
The legislative history for art. X, §7 confirms legislative intent to ban the introduction of new types of pari-mutuel pools after 1968. A 1940 amendment to the Florida Constitution providing for the distribution of tax collections from pari-mutuel pools had authorized the pari-mutuel pools that existed in 1968.6 To resolve the apparent disparity between the anti-lottery provision and the tax distribution provision consistently with the status quo, the anti-lottery provision as originally drafted by the Constitutional Revision Commission and introduced in the Florida Senate on January 9, 1967, provided: “All lotteries are prohibited other than pari-mutuel pools regulated by law.”7 This language would have allowed the legislature continued blanket authority to legalize any new type of pari-mutuel it wanted by statute, but this provision did not make it into the 1968 Constitution. The source of most of the new anti-lottery language in the 1968 Constitution was a floor amendment adopted in the Florida Senate on August 31, 1967.8 On this same day, the Florida Senate rejected another amendment that would have provided: “Lotteries, other than pari-mutuel pools regulated by law, are hereby prohibited in this state.”9 The Florida Senate specifically rejected language that would have continued to allow the legislature to authorize new types of pari-mutuel pools after 1968 and deliberately chose language that had the opposite effect.
The significant differences between the two constitutional anti-lottery provisions mean that cases interpreting the 1885 provision should be used with great caution when interpreting the 1968 provision. One cannot reasonably apply a pre-1968 lottery case today without giving serious consideration to the possibility that the old case is distinguishable or even overruled by the new provision. An examination of these pre-1968 cases follows.
Slot Machines and Lotteries Under the 1885 Florida Constitution
The constitutional story of slot machines in Florida began with a statute authorizing these machines in 1935.10 Shortly after passage, the city of Miami brought a constitutional challenge to the slot machine statute under the anti-lottery provision of the 1885 Florida Constitution. The trial court ruled in favor of the city and the named defendant, J.M. Lee as comptroller of Florida, appealed.11
Twice prior to 1935, the Florida Supreme Court held that a lottery consists of three elements: prize, chance, and consideration. As early as 1898, the Florida Supreme Court viewed lotteries as limited to these three elements, as reflected in the jury instruction the court approved in Bueno v. State, 23 So. 862, 863 (Fla. 1898). The Florida Supreme Court also approved Bueno’s definition of a lottery and the three elements in D’Alessandro v. State, 153 So. 95 (Fla. 1934).
In Lee, the Florida Supreme Court deviated from the three-element test for a lottery and added a fourth element: The lottery must have a widespread and not an isolated effect on the community where it is located.12 According to Lee, if the purported lottery lacked a widespread operation in the community, then it lacked the fourth element and was not a lottery.13
Lee’s widespread operation test is loosely based on Phalen v. Virginia, 49 U.S. 163 (1850).14 The issue in Phalen was whether legislative changes concerning the administration of a Virginia lottery statute violated the federal constitutional prohibition against impairment of contracts.15 Phalen discussed the supposed widespread effect of the lottery to confirm Virginia’s public policy reason to modify and ultimately repeal its lottery statute and avoid the impairment of contract challenge.16 There is no indication that Phalen was attempting to make it more difficult for states to prohibit lotteries or to create a safe harbor for non-widespread lotteries. Lee did not apply the legal analysis of Phalen to the operation of Florida’s constitutional anti-lottery prohibition, but superimposed Phalen’s factual description of Virginia’s lottery into a collective state of mind of what Floridians supposedly meant in adopting the anti-lottery provision. Lee’s mind reading exercise is an example of a legal fiction, that is, assuming an unsubstantiated fact to extend Phalen beyond its original meaning. To justify this legal fiction, Lee mentioned various Florida historical statutes that categorized types of gambling,17 but neither these statutes, nor anything else in Lee, provided direct historical evidence to support this legal fiction.
Even though Lee added the fourth element of widespread operation, the case did not hold that slot machines per se are not lotteries. Instead, near the end of the opinion, Lee concluded:
What section 23 of article 3 [of the 1885 Florida Constitution] actually did was to suppress such legalized lotteries as are referred to in the forepart of this opinion, the primary test of which was whether or not the vice of it infected the whole community or country, rather than individual units of it. Any gambling device reaching such proportions would amount to a violation of the [c]onstitution, but it is not alleged or shown that the devices legalized by Chapter 17257 [the 1935 slot machine statute] come in this class.
Chapter 17257 on its face does not clearly offend against organic law, nor do the coin-operating vending machines described in section 2, the use of which is restrained, constitute lotteries per se. It may be that some of them, or possibly all of them in their operation, will become such; but we leave that question to be determined when a specific case arises.18
Under Lee, it expressly remained an issue of fact whether any particular slot machines would have a widespread operation and, thus, constitute a lottery. Any specific slot machines having a widespread operation would satisfy the fourth element and be constitutionally prohibited.
In Hardison v. Coleman, 164 So. 520 (Fla. 1935), decided three months after Lee, a person named L.B. Hardison brought a habeas proceeding against a sheriff who had charged that Mr. Hardison’s slot machine constituted a lottery. The Florida Supreme Court followed Lee and discharged Mr. Hardison, concluding his one device did not meet the widespread operation test. However, Hardison reiterated Lee’s declaration that lack of widespread operation is an evidentiary test and not an inherent aspect of slot machines: “The [Lee] court said: ‘It may be that some of them, or possibly all of them in their operation, will become’ lotteries, ‘but we leave that question to be determined when a specific case arises.’”19
When the Florida Supreme Court decided Lee and Hardison in 1935, it must have viewed slot machines as novelties and standalone devices, like Mr. Hardison’s slot machine, as opposed to paper lottery tickets, which could be sold and distributed all over a community. Things did not unfold in the next two years in the way the Florida Supreme Court apparently expected in 1935. In 1937, the Florida comptroller, the same J.M. Lee who had prevailed in Lee, prepared a document for Florida Governor Fred Cone estimating there to be 10,000 slot machines with total yearly play of $52 million in Florida.20 Even children were allowed to gamble on these machines.21 Slot machines in their actual operation had collectively turned out to be widespread and lotteries under Lee’s criteria, but the Florida Supreme Court did not have a case to revisit the issue directly. Instead, the legislature and Governor Cone took matters into their own hands by repealing the 1935 slot machine statute in 1937.22 The vote for repeal in the legislature was overwhelming. This repeal statute, which also banned slot machines, was authored and vigorously championed by a young representative and future Florida governor named LeRoy Collins, who called the two-year experience with slot machines “a dose of moral poison.”23
The year 1935 represents the high-water mark for slot machines in Florida for the decade of the 1930s. In the remaining years of this decade, several case developments called Lee and Hardison seriously into question. Shortly after the repeal, in a concurrence to a case involving repeal issues, Bechtol v. Lee, 176 So. 265 (Fla. 1937), Justice Buford, who had dissented from Lee,24 made the following observation to which the majority in Bechtol did not take exception:
Experience throughout the state during the past two years has abundantly justified what I said in that opinion [referring to Lee].
It is now generally conceded that no more generally damning influence has been applied to the honesty, integrity, and frugality of the boys and girls and men and women of this state than that which was foisted upon them by the provisions of chapter 17257 [the 1935 slot machine statute]. It is also generally conceded that to hold the operation of these devices to be merely a lottery is being charitable.25
The next year, Justice Buford elaborated on slot machines as a very bad form of lottery when he wrote for a unanimous panel in explaining why the slot machine statute was repealed:
It is a matter of common knowledge, of which we must take judicial cognizance, that the lure to play the slot machine had become so great as to undermine the morals of many and to lead to the commission of or the indulgence in vices and crime to procure the coins with which to play the machines.26
The Florida Supreme Court is, therefore, on record in concluding that slot machines lead to compulsive and criminal behavior, a far different result than in Lee and Hardison. Eccles also seems to imply that the 1930s era slot machines satisfied the widespread operation test.
Finally, in Little River Theatre Corp. v. State ex rel Hodge, 185 So. 855, 861 (Fla. 1939), the Florida Supreme Court decisively held: “The authorities are in accord that a lottery has three elements: first, a prize; second, an award by chance; and, third, a consideration.” Little River Theatre omitted the fourth element of widespread operation and seemed to abandon the core principle of Lee and Hardison. Little River Theatre involved a “bank night” drawing at a single theatre location in the Miami suburbs.27 The lack of widespread operation would seem to have been a very viable defense for the theatre, but it is nowhere to be found in the case.
Justice Buford’s strongly worded and unchallenged concurrence in Bechtol, the opinions in Eccles and Little River Theatre, thousands of machines, and $52 million in annual betting by adults and children all seem to point to one conclusion: The Florida Supreme Court in the late 1930s might have overruled or receded from Lee and Hardison if the 1937 repeal of the slot machine statute had not rendered these cases moot. This possibility will never be confirmed or refuted with certainty because slot machines were never legalized again in Florida while the 1885 Constitution was in effect.
The 1968 Florida Constitution and Greater Loretta
A year prior to the adoption of the 1968 Florida Constitution, the legislature legalized bingo.28 The Greater Loretta Improvement Association, Inc., was a nonprofit association operating in Duval County. Following the adoption of the bingo law in 1967, the association began to offer bingo at its clubhouse. Arthur T. Boone was a private citizen who opposed the association’s use of its building for bingo. Mr. Boone obtained an injunction against the association in Duval County Circuit Court on the grounds that bingo was a lottery and the bingo statute was, therefore, unconstitutional under Fla. Const. art. III, §23 (1885).29
The Florida Supreme Court overturned the circuit court in the 1970 case of Greater Loretta.30 The case analyzed the constitutionality of bingo during the time of transition from the 1885 Florida Constitution to the 1968 Florida Constitution and it took into account the anti-lottery provisions of both documents.31
According to Greater Loretta’s analysis under the 1885 Constitution, the 1967 legislature was justified to rely on Lee to conclude that bingo in 1967, like slot machines in 1935, could be permissible under the 1885 Constitution.32 Therefore, according to Greater Loretta, the 1967 legislature had the authority under Lee to adopt a bingo statute under the 1885 Constitution. Greater Loretta reaffirmed Lee in the context of the 1885 Constitution.33
Greater Loretta applied Lee superficially to bingo as Greater Loretta did not analyze bingo under Lee’s widespread operation test. Nevertheless, Greater Loretta’s conclusion to grandfather bingo was consistent with the wording and intent of art. X, §7. As discussed above, pari-mutuel pools were constitutionally legitimized by the 1940 constitutional amendment providing for the distribution of taxes on these pools, not Lee. Bingo, like horse racing, was a lawfully existent pari-mutuel pool in 1968 regardless of Lee. The same 1967 legislature that authorized bingo could not have reasonably intended to undo this authorization by the 1968 Constitution, which they approved in the same legislative session, nor according to Greater Loretta would it make sense to allow horse racing but not bingo to continue.34
Lee did not play a role in Greater Loretta’s analysis of bingo under the 1968 Constitution and Lee is not mentioned in this section of the majority opinion.35 According to Greater Loretta, making lotteries inclusive of pari-mutuel pools significantly expanded the term “lotteries” under the 1968 Constitution to include specifically horse racing, dog racing, jai alai, bingo and most significantly for today, slot machines. Greater Loretta concluded bingo is a permitted lottery under the 1968 Constitution because it was permitted by the 1885 Constitution; it was lawfully functioning in 1968; and it was, therefore, grandfathered in. On the other hand, slot machines were illegal in 1968 under F.S. §§849.15 and 849.16 (1967); they were, therefore, not grandfathered in and they remained prohibited under the new constitution. Therefore, as quoted in the introduction of this article, Greater Loretta concluded slot machines are lotteries and are prohibited under Fla. Const. art. X, §7 (1968). The very clear meaning of Greater Loretta is that art. X, §7 legislatively overruled Lee and Hardison on whether slot machines constitute lotteries going forward under the 1968 Constitution.
Lee itself shows that the addition of pari-mutuel pools to the constitutional definition of lotteries was a significant change in the 1968 Constitution. Lee explicitly viewed horse racing as a pari-mutuel and something different from a lottery under the 1885 Constitution. In contrast, Greater Loretta viewed horse racing as a pari-mutuel and a lottery under the 1968 Constitution.36
Greater Loretta was initiated over bingo, not slot machines. It is a reasonable question whether Greater Loretta’s word on slot machines is dicta or true controlling authority. It was clearly part of Greater Loretta’s holding that bingo was not unconstitutional under the 1968 Constitution because it was grandfathered under art. X, §7. It was also clearly part of Greater Loretta’s holding that “only those lotteries then legally functioning” in 1968 would be grandfathered, that is horse racing, dog racing, jai alai, and bingo. Slot machines were not legally functioning in 1968. Therefore, Greater Loretta’s holding that upheld the constitutionality of bingo necessarily banned slot machines under art. X, §7.
Slot Machines Come to South Florida in 2004
In 2004, the voters approved Fla. Const. art. X, §23, which permits slot machines at certain pari-mutuel facilities in Broward County and Miami-Dade County. Under the amendment, only facilities that conducted live racing or games in the two years prior to the adoption of the amendment are eligible to have slot machines. The amendment further requires a local voter referendum before the slot machines may be authorized.
Prior to the 2004 referendum on art. X, §23, the ballot initiative was submitted to the Florida Supreme Court for review. As stated in In re Advisory Opinion to Atty. Gen. re Authorizes Miami-Dade and Broward County Voters to Approve Slot Machines in Parimutuel Facilities, 880 So. 2d 522, 523 (Fla. 2004), the purpose of this review was limited to two issues: 1) whether the proposed amendment satisfied the single-subject limitation of Fla. Const. art. XI, §3; and 2) whether the ballot title and summary satisfied the requirements of F.S. §101.161(1) (2003). Unfortunately, the Florida Supreme Court included the following in its discussion of why the amendment did not violate the single-subject requirement:
We have long since settled the question of whether slot machines constitute lotteries. In Lee v. City of Miami, 121 Fla. 93, 163 So. 486, 490 (1935), we addressed the question of whether certain legislatively described gambling machines, such as slot machines, constituted lotteries prohibited by the state constitution. We concluded they did not. We noted that the “Legislature recognized the distinction between lotteries and other species of gambling” and had never defined “lottery” “to include other forms of gambling.” Id. We then concluded the “primary test” for a lottery prohibited by the constitution “was whether or not the vice of it infected the whole community or country, rather than individual units of it.” Id. We reaffirmed Lee in a case in which the defendant, who kept a slot machine in his business, was charged with the crime of conducting a lottery. See Hardison v. Coleman, 121 Fla. 892, 164 So. 520, 521-22 (1935). Reiterating that a slot machine is not a lottery, we stressed that “[i]t may be true that every lottery is a game or gambling device, but it does not follow that every game or gambling device is a lottery within the meaning of” the constitutional prohibition of lotteries. Id. at 522. Further, the Florida Statutes continue to differentiate the two. See §849.09, Fla. Stat. (2003) (prohibiting “persons” from conducting or promoting lotteries); id. §849.15 (prohibiting ownership or use of slot machines); id. §849.16(1) (defining “slot machine”). Accordingly, the proposed amendment does not amend the lottery provisions of the state’s constitution.37
From this article thus far, it should be obvious this passage from the Advisory Opinion is problematic on multiple levels. Lee and Hardison did not categorically state that slot machines are not lotteries. Instead, these cases, as the Advisory Opinion’s own quotes from them show, created an evidentiary test of widespread operation and found in these particular cases that it had not been proven this test had been met. Construing Lee and Hardison as concluding slot machines inherently lack widespread operation is to construe them as having assumed a factual matter that has not been proven in an evidentiary hearing. Mr. Hardison’s one single device was held not to be a lottery, due to a lack of evidence in his case, but that holding does not necessarily extend to the collective operation of thousands of slot machines. The difference between one slot machine and thousands of them is called widespread operation.
After the 1935 slot machine statute was repealed, Eccles seemed to imply that the slot machines under this statute had collectively met the widespread operation test. Little River Theatre seemed to abandon the widespread operation test altogether. Even if the widespread operation test survived Little River Theatre, Fla. Const. art. X, §7 (1968) legislatively overruled Lee and Hardison and erased the distinction these two cases made between lotteries and pari-mutuel pools as explained in the preceding section of this article on Greater Loretta, a case which the Advisory Opinion apparently overlooked.
Even the Advisory Opinion’s discussion about the Florida Statutes is problematic. At the time of the Advisory Opinion, F.S. §849.16(1) (2003) defined slot machines according to the three common law elements of a lottery, with consideration and chance denoted in subsection (1) and prize in subsections (1)(a) and (b). In 2013, the statutory definition was broadened to include skill as an alternative to the element of chance.38 Nevertheless, this statutory definition, which derives directly from the 1937 repeal statute, makes no reference to widespread operation either before or after the 2013 change. The Advisory Opinion indicates the statutory treatment of lotteries and slot machines matters to the constitutional interpretation of these terms, but F.S. §849.16(1) omits the core principle of Lee and Hardison.
Resolving the Conflict between Greater Loretta and the Advisory Opinion
Greater Loretta and the Advisory Opinion stand in stark contradiction to each other with no apparent middle ground between them. There are several reasons why Greater Loretta should control over the Advisory Opinion. The Advisory Opinion is an advisory opinion and, as such, it is not binding judicial precedent, especially as to issues not properly before the Florida Supreme Court.39 In contrast, Greater Loretta involved a real case and controversy between a pro-gambling faction, the Greater Loretta Improvement Association, and an anti-gambling faction, Mr. Boone. The case was fully litigated at the trial and appellate level as discussed above.
The Advisory Opinion is a vivid example of why advisory opinions do not and should not have a high precedential value. If the issues discussed in the Advisory Opinion had been fully vetted in the trial and lower appellate courts, there would have been a better chance that Greater Loretta would not have been overlooked. Moreover, the case leading to the Advisory Opinion did not provide a fair forum or due process for those opposed to the expansion of gambling statewide since the amendment under review only proposed slot machines in two South Florida counties.
The discussion about art. X, §7 in the Advisory Opinion was in sub silentio conflict with the Florida Supreme Court’s prior controlling precedent in Greater Loretta. According to Puryear v. State, 810 So. 2d 901, 905 (Fla. 2002), the Florida Supreme Court does not intentionally overrule itself sub silentio. Greater Loretta and the Advisory Opinion must be expressly evaluated against each other before it can be determined which one must yield. Therefore, even though the Advisory Opinion was later in time, it did not overrule Greater Loretta.
Ray v. Mortham, 742 So. 2d 1276, 1285-86 (Fla. 1999), presents a potential argument not to revisit the Advisory Opinion. According to Ray, relitigating how an advisory opinion addresses compliance with the single-subject requirement is strongly disfavored. Under Greater Loretta’s interpretation of art. X, §7, however, amending this section was integral to authorizing a local option for slot machines. The 1986 amendment for the state lottery, art. X, §15, literally modified art. X, §7, but the Florida Supreme Court found no single subject problem with this 1986 amendment in Carroll v. Firestone, 497 So. 2d 1204 (Fla. 1986). This aspect of the 2004 amendment, thus, did not create a single-subject problem under the actual controlling law. Since the amendment would still comply with the single subject requirement, revisiting the Advisory Opinion’s discussion about art. X, §7 is acceptable under Ray, which also provides an exception for extraordinary circumstances when an advisory opinion does not address a vital issue. That exception beckons emphatically here.
As a corollary to the single subject requirement, Fine v. Firestone, 448 So. 2d 984, 989 (Fla. 1984), requires a ballot initiative to notify the voters of any affected sections of the constitution. The ballot initiative for art. X, §23 failed to notify the voters that art. X, §7 would be impacted and the purpose of the Advisory Opinion’s discussion about art. X, §7 was to excuse this failure.40 The failure to provide this notice may have changed the voting outcome and perhaps it was insignificant to how the voters made their decision. Regardless of these questions, however, this failure should not effectively amend art. X, §7 to allow slot machines everywhere in Florida when the initiative itself proposed only a limited availability of slot machines. The Advisory Opinion is not a valid substitute for an actual constitutional amendment.
The most important reasons to conclude that Greater Loretta controls over the Advisory Opinion are that only Greater Loretta is faithful to the text of Fla. Const. art. X, §7 (1968), and only Greater Loretta confirms the apparent express will of the 1968 voters to adopt an expanded constitutional definition of lotteries that includes slot machines and all other types of pari-mutuel pools.41 The Advisory Opinion would nullify the decision of the voters in 1968 without even taking that decision under due consideration.
The 2009 Slot Machine Statute
In 2009, the legislature adopted Ch. 2009-170, Laws of Florida, which amended F.S. §551.102 (2012), and which ostensibly expands the possibility of slot machines to all pari-mutuels in South Florida and the rest of the state, not merely the specific facilities in South Florida described in Fla. Const. art. X, §23 (1968).
In Florida Gaming,42 some of the facilities explicitly granted slot machine privileges under art. X, §23 sued the Florida Department of Business and Professional Regulation and other apparent gambling interests. The suit aimed to have Ch. 2009-170 declared unconstitutional based on art. X, §23 implicitly banning any slot machines not covered by the section.43 The First District Court of Appeal rendered its opinion in Florida Gaming on October 6, 2011, and upheld the constitutionality of Ch. 2009-170 based on a case holding that the legislature has the constitutional authority to ban horse racing on Sunday.44 Lee, Hardison, Eccles, Little River Theatre, most importantly art. X, §7 and Greater Loretta, and even the 2004 Advisory Opinion were all no shows in the opinion. Of course, the legislature has the authority to regulate constitutionally permitted types of lotteries and pari-mutuel pools, such as horse racing, but that is far different from authorizing new types of pari-mutuel pools that Fla. Const. art. X, §7 (1968) expressly forbids.
On April 27, 2012, the Florida Supreme Court declined to accept jurisdiction in Florida Gaming.45 The conflict discussed in this article remains. On the authority of Greater Loretta, legislation authorizing new slot machine venues, including Ch. 2009-170, remains vulnerable to constitutional challenge.
The discussion about Fla. Const. art. X, §7 (1968) in the 2004 Advisory Opinion was a mistake that has had the serious consequence of unleashing a wide array of gambling interests on the people of Florida. The language of this constitutional provision as newly adopted in 1968 should have prevented this result.
Both the voters of Florida and the legislature approved and adopted Fla. Const. art. X, §7 (1968), reaching a common understanding about lotteries and pari-mutuel wagering in Florida. All doubts about this matter would be resolved by grandfathering the lotteries and pari-mutuel pools lawfully existent in 1968. Integral to this understanding, however, was the condition that all types of lotteries and pari-mutuel wagering that were illegal in 1968, including but not limited to slot machines, would remain constitutionally prohibited. The voters, through the constitutional amendment process, and not the legislature, would retain final authority on whether to allow new types of lotteries and pari-mutuel wagering in the Sunshine State. The legislature should honor this understanding that they made with the voters in 1968 and the courts should enforce this understanding. More venues for slot machines should not be permitted in Florida without an amendment to the Florida Constitution.
1 Greater Loretta Imp. Ass’n v. State ex rel Boone, 234 So. 2d 665, 671-672 (Fla. 1970) (emphasis added).
2 Fla. Const. art. IV, §20 (1868) is identical to the anti-lottery provision in the 1885 Constitution. Florida’s earlier constitutions did not have a lottery provision.
3 Greater Loretta, 234 So. 2d at 667-69.
4 Id. at 670-72.
5 Id. at 671.
6 Volusia County Kennel Club v. Haggard, 73 So. 2d 884, 886 (Fla. 1954) (all doubt regarding the legality of pari-mutuel pools was removed by the adoption of Fla. Const. art. IX, §15 (1885)). The tax distribution provision is currently in Fla. Const. art. VII, §7 (1968).
7 Fla. S. J. 15 (Spec. Sess. Jan. 9, 1967). The anti-lottery provision appeared at Fla. Const. art. X, §6 (1968) in early drafts.
8 Fla. S. J. 51 (Spec. Sess. Aug. 31, 1967). This floor amendment read: “Lotteries, other than pari-mutuel pools authorized by law as of the effective date of this [c]onstitution, are hereby prohibited in this state.” The only difference between the floor amendment and the final adopted version was the addition of the words “the types of” before “pari-mutuel pools.”
9 Id. at 49.
10 Ch. 17257, 1935 Fla. Laws 1085.
11 Lee v. City of Miami, 163 So. 486, 487 (Fla. 1935).
12 Id. at 489.
13 Id. at 489-90.
14 See id.
15 Phalen, 49 U.S. at 164.
16 Id. at 168.
17 Lee, 163 So. at 489-90.
18 Id. at 490 (emphasis added).
19 Hardison, 164 So. at 523.
20 See Florida State Archives, Series 368, Carton 18, File Folder 10, file folder maintained by Governor Cone titled “Comptroller.”
21 Mary Ellen Klas, Gambling’s Long History in Florida, Tampa Bay Times, Nov. 29, 2009, available at http://www.tampabay.com/news/perspective/gamblings-long-history-in-florida/1054214.
22 Ch. 18143, 1937 Fla. Laws 909.
23 Martin Dyckman, Floridian of His Century: The Courage of Governor LeRoy Collins 31 (2006); LeRoy Collins to Address Women’s Club, St. Petersburg Times, Feb. 7, 1954, at 14-E.
24 Lee, 163 So. at 491 (Buford, J., dissenting).
25 Bechtol, 176 So. at 268 (Buford, J., concurring).
26 Eccles v. Stone, 183 So. 628, 631 (Fla. 1938).
27 Little River Theatre, 185 So. at 856.
28 Ch. 67-178, §1, 1967 Fla. Laws 353 (adopting Fla. Stat. §849.093 (1967)).
29 Greater Loretta, 234 So. 2d at 673-74 (Carlton, J., dissenting; the procedural history of the case appears in the dissent, but the majority opinion did not take exception to this history).
30 Id. at 672.
31 Id. at 667-72.
32 Id. at 668.
33 See id.
34 Id. at 671.
35 See id. at 670-72.
36 Compare Lee, 163 So. at 490, with Greater Loretta, 234 So. 2d at 671-72, as quoted in the introduction of this article.
37 Advisory Opinion, 880 So. 2d at 525.
38 Ch. 2013-2, §4, 2013 Fla. Laws ____ (amending Fla. Stat. §849.16 (2013)).
39 Florida League of Cities v. Smith, 607 So. 2d 397, 399 n.3 (Fla. 1992).
40 See Advisory Opinion, 880 So. 2d at 525.
41 See Greater Loretta, 234 So. 2d at 670-72.
42 Florida Gaming, 71 So. 3d 226 (Fla. 1st DCA 2011).
43 Id. at 228.
44 Id. at 229 (citing Div. of Pari-Mutuel Wagering Dep’t of Bus. Reg. v. Fla. Horse Council, Inc., 464 So. 2d 128, 130 (Fla. 1985)).
45 Florida Gaming, rev. den., 90 So. 3d 271 (Fla. 2012).
David G. Shields, an assistant county attorney for Seminole County, is a fifth generation Floridian originally from Ocala who graduated from the College of Arts and Sciences of Vanderbilt University and the University of Florida College of Law.
The views expressed in this article are his and not necessarily that of Seminole County Government.