8 Reasons Florida’s Constitutional Amendment On ‘Casino Gambling’ Doesn’t Bar Legislative Authorization Of Sports Betting
By Daniel Wallach
January 5, 2020
The debate over the legalization of sports betting in Florida intensifies next week when the Florida Legislature kicks off its 60-day legislative session. As the third-most-populous state, with a booming tourism industry (over 125 million visitors annually), and the added lure of year-round warm weather with over 650 miles of beaches, Florida could potentially become one of the top U.S. markets for sports betting.
According to an economic impact study commissioned by the American Gaming Association, legalized sports betting in Florida could generate more than $110 million in annual tax revenue for the state, assuming that mobile wagering were allowed.
But unlike the vast majority of states that have already legalized sports betting, Florida has a unique political and legal environment that could make it challenging to pass a sports betting law. One potential obstacle is Article X, Section 30 of the Florida Constitution, approved last year by Florida voters pursuant to the ballot measure known as Amendment 3. Article X, Section 30 – entitled “Voter control of gambling in Florida” – grants Florida voters the exclusive right to decide whether to authorize the expansion of “casino gambling” in the State of Florida. This constitutional amendment, which became effective on November 6, 2018, requires a vote pursuant to a citizen’s initiative – basically, another ballot question – in order for casino gambling to be allowed under Florida law. It essentially strips state lawmakers of the legislative power to authorize casino gambling, and makes a citizen initiative the “exclusive method" for doing so.
But does it apply to sports betting? After all, the words “sports betting” do not appear anywhere in the text of Article X, Section 30. Those words are likewise omitted from the ballot title and ballot summary of Amendment 3, the successful ballot measure which added Article X, Section 30 to the Florida Constitution. As I pointed out in a Forbes article published in late 2018, the term “casino gambling” was defined by the sponsors of Amendment 3 in such a highly-specific way that it could not logically encompass sports betting. This was because of language in Amendment 3 requiring that it be the type of game “typically found in casinos” as of the date of the adoption of the amendment, which was November 6, 2018. Evaluating the casino landscape as of that date, it became quite clear to me that sports betting was not “typically found in casinos” for one incontrovertible reason: it was available in only 6 out of 40 states where casino gambling was allowed, and in only 3 out of more than 500 tribal casinos. In the vast majority of states – and casinos nationwide – sports wagering was not available as a casino amenity on November 6, 2018.
Not surprisingly, the sponsors of Amendment 3 do not share my plain-meaning reading of the constitutional language – a view, which I might add, is informed by basic rules of statutory interpretation. Their representatives have dubiously asserted that it would violate the “will of the people” for Florida lawmakers to enact a sports betting law outside of the citizen initiative process, even though the words “sports betting” do not appear anywhere in Article X, Section 30. As evidence of “voter intent,” they cite to statements made in newspaper articles and press releases urging Florida voters to reject Amendment 3 on the basis that it would impede the ability of lawmakers to legislatively authorize sports wagering.
But that has never been the benchmark for ascertaining voter intent in Florida, and for good reason. As a leading national expert on constitutional interpretation has observed: “asking judges to weigh into the domain of media coverage in search of a singular and dispositive popular intent imagines a judicial task that is onerous and – more significantly – ultimately incoherent. This task seems . . . doomed to fail . . . [p]articularly in a high-profile campaign, [where] the mass of media representations is sprawling and diffuse, and . . . will rarely yield definitive answers about the design of the voters.”
Do you know what’s the best evidence of voter intent? How about the actual language used in the Florida Constitution. What a novel idea. Actually, it’s not so novel – Florida’s Supreme Court requires it. See Zingale v. Powell, 885 So.2d 277, 282-83 (Fla. 2004) (“[a]ny inquiry into the proper interpretation of a constitutional provision must begin with an examination of the provision’s explicit language. . . . We thus begin with the actual language used.”); Crist v. Fla. Ass’n of Criminal Def. Lawyers, Inc., 978 So.2d 134, 139-40 (Fla. 2008) (“First and foremost, this Court must examine the actual language used in the Constitution.”)
It is this plain language – and the interpretative rules mandated by Florida courts –that lead to the inescapable conclusion that Amendment 3 does not bar the legislative authorization of sports betting. This conclusion is bolstered by the existence of another proposed “voter control of gambling” measure introduced in March 2016 – at around the same time as the Amendment 3 citizen initiative petition – which expressly referred to “sports betting” as being included within the specific categories of “gambling” that require voter approval. This virtually identical proposal – which specifically included sports betting within its ambit – undermines any claim that Article X, Section 30 – which refers to every form of Class III gambling in its definition except for one (guess which one that is?) somehow encompasses sports betting.
Here’s a closer look at the eight factors that decidedly tip the scales in favor of the legislative authorization of sports betting.
The use of the conjunctive “and” makes the definition of “casino gambling” a two-part test, requiring that both conditions be satisfied.
The debate over whether Article X, Section 30 encompasses sports betting focuses largely on the meaning of the first sentence of Section 30(b). That sentence states as follows: “[a]s used in this section, ‘casino gambling’ means any of the types of the 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. ss. 2701 et seq (“IGRA”), and in 25 C.F.R. s. 502.4, upon adoption of this amendment, and any that are added to such definition of Class III gaming in the future.” (emphasis added)
The use of the conjunctive “and” is significant here. A basic rule of construction recognized by Florida courts is that where the conjunctive word “and” is inserted between two conditions in a statutory or contractual provision, it means that both conditions must be satisfied. See Buie v. Bluebird Landing Owners’ Ass’n, Inc., 172 So.3d 519, 521 (Fla. 1st DCA 2015) (“‘And’ is conjunctive and means that both conditions apply.”); Gorham v. Zachry Industrial, Inc., 105 So.3d 629 (Fla. 4th DCA 2013) (statute written in the conjunctive requires that all elements must be satisfied).
Thus, the only acceptable way to read the first sentence of section 30(b) – and the only one which comports with basic principles of statutory interpretation – is that the definition of “casino gambling” has two distinct component parts. First, the game at issue must be the type of game that is “typically found in casinos.” Second, the game at issue must be categorized as “Class III” gaming under IGRA.
In the face of this plain language, the proponents of Amendment 3 have urged an interpretation that would render the conjunctive word “and” completely meaningless, in derogation of well-settled principles of statutory interpretation.
In a legal opinion circulated during last year’s Florida legislative session, a lawyer representing the group “No Casinos, Inc.” (the sponsor of Amendment 3) asserted that, rather than imposing two separate conditions that must be met, the first sentence of section 30(b) sets forth a “serial list of three separate and distinct activities” that independently are sufficient to constitute casino gambling.
He points to the presence of a second “and” in the opening sentence of section 30(b) – the one linking the words “upon adoption of this amendment” to “any that are added to such definition of Class III gaming in the future” – and argues that this language delineates “additional activity” which expands the “scope of covered games” to include any of the following: “(1) any activity that is commonly found in a casino; (2) any activity that falls within the definition of IGRA class III; and (3) any activity that in the future that is added to the definition of IGRA class III.”
In other words, the lawyer for No Casinos is urging an interpretation that would allow for a finding of “casino gambling” if any of the above conditions is satisfied.
The fatal flaw in that interpretation is that it seeks to convert the conjunctive “and” – which would require that all conditions be satisfied – into the disjunctive “or”— in which only one of the conditions would need to be met – even though the word “or” does not appear anywhere in the first sentence of section 30(b).
It also misconstrues the language surrounding the second conjunctive “and” in the first sentence of section 30(b), by characterizing it as “additional activity” that could be considered “casino gambling” under the section 30(b) definition.
Far from creating “additional” examples of casino gambling, the words “upon adoption of this amendment, and any that are added to such definition of Class III gaming in the future” simply refer to the relevant time-frame for assessing the two required conditions under the section 30(b) definition: i.e., that the game at issue be “typically found in casinos” AND “within the definition of Class III gaming.”
The additional language simply means that both conditions are to be assessed “upon adoption of this Amendment” (i.e., November 6, 2018 – the date that Amendment 3 was approved by Florida voters), although in the case of the second condition (i.e., that it constitute Class III gaming), the inclusion of the words “and any that are added to such definition of Class III gaming in the future” suggests that the second condition is “open-ended” and has no cut-off date or expiration.
Casino gambling and Class III gaming are not synonymous.
In yet another line of attack against the “two-condition” test plainly expressed by section 30(b), the lawyer for No Casinos argues that it would violate “rules of construction” to require a finding that the game at issue satisfy both the “typically found in casinos” and “Class III gaming” prongs. He asserts that such an interpretation would “accomplish nothing” since “casino gaming” is almost always Class III,” thereby rendering the second requirement “meaningless.”
That is simply not true. Not every casino game is a Class III game. For example, non-house banked card games, such as poker (in which the players play against one another rather than against the house), are designated as Class II gaming under IGRA, and are often found in casinos. Just about every commercial casino has a poker room where players wager against each other rather than against the house.
Likewise, not every form of Class III gaming is “typically found” in a casino. For example, wagering on horse racing, dog racing, and jai-alai – while designated as Class III gaming under IGRA – is rarely, if ever, found within a casino environment.
Thus, there does not appear to be any merit to the argument that the imposition of both prerequisites – that the game at issue be both “typically found in casinos” and “Class III gaming” – would render the second condition “superfluous.” As the above examples amply demonstrate, there are plenty of casino games (such as player-banked poker) that are not considered Class III gaming, just as there are many Class III games (such as jai alai) that are rarely found in a casino setting.
The first prong of the Section 30(b) definition looks to whether the game at issue was “typically found in casinos” upon the “adoption” of the amendment, which was November 6, 2018 (the date that Amendment 3 was approved by voters). If sports betting was not typically found in casinos as of the November 6, 2018 measurement date, then it’s case over and lawmakers are free to act. (By the way, the second prong of the section 30(b) inquiry – which looks at whether the game fits within the definition of Class III gaming under IGRA – is not a matter in dispute inasmuch the federal IGRA regulations already categorize sports betting as a form of Class III gaming).
As of November 6, 2018, there were 40 U.S. states that had legal casino gambling (counting both commercial casinos and tribal casinos). Of those 40 states, only six (Nevada, Delaware, New Jersey, Mississippi, West Virginia and New Mexico) had casinos which included sports betting as an amenity for patrons. Stated another way, in only 15 percent of the eligible states (i.e., those with legal casinos) could it be said that sports betting was “found” in a casino. In other words, not “typical.”
The word “typically” means “commonly”, “generally”, “naturally”,” normally”, “ordinarily”, or “usually”, according to the Merriam-Webster Online Dictionary. See Lee Mem’l Health Sys. v. Progressive Select Ins. Co., 260 So.3d 1038, 1043 (Fla. 2018) (“Widely circulated dictionaries are helpful for identifying the plain meaning of constitutional language.”).
Under this plain-language definition, which would likely be utilized by a Florida court should the scope of section 30(b) ever be litigated, it cannot credibly be asserted that sports wagering is the type of game “typically found” in casinos, when only a small percentage of U.S. casinos offered it as of November 2018. In fact, it wouldn’t even require a trial, it’s that clear-cut.
Recognizing that this interpretation – the only plausible one – would be fatal to their argument against the legislative authorization of sports betting, the lawyer for No Casinos attempts to rewrite the “typically found” language by adding new words to it. He reinterprets the plain and simple phrase “any of the types of games typically found in casinos” as being tantamount to the following inquiry: “where would a Florida voter expect to find lawful sports betting in November of 2018?”
The language employed in section 30(b) says nothing about where a voter might “expect to find” lawful sports betting. The “typically found” language in the first sentence of section (30(b) is not a “state of mind” test. Rather, it looks to where sports betting was “typically found” regardless of one’s state of mind, subjective knowledge, or perspective. What a Florida voter “might think” (a purely subjective inquiry) is of no moment to the constitutional analysis. What does matter is the actual state of affairs which existed as of November 6, 2018 (the date of the adoption of Amendment 3). At that time, sports betting could be found in only a handful of states that had legal casinos. Or, to be more precise, in only 6 out of 40 states – or just 15% of them.
Not content to just add new words, the lawyer for No Casinos also tries to radically alter the focus of the inquiry. He reimagines the “typically found in casinos” test to mean the following: “where did an individual typically find the legal ability to bet on the results of a single baseball game or football game at the time of the passage of Amendment 3? His answer: “casinos, and, specifically, casinos in the State of Nevada.”
But, that’s not how the section 30(b) test is actually worded. It simply looks to whether the wagering at issue is one that was “typically found in casinos,” not whether it was typically found only in “Nevada” casinos. If the proponents of Amendment 3 had wanted to make the section 30(b) definition a “geographically-focused” standard, they had the ability to do so when drafting the citizen’s initiative petition back in 2015. They had nearly a three-year period between the submission of the proposed initiative in late 2015 and the actual vote on November 6, 2018 to amend the proposed initiative to include the additional language that their attorney now seeks to belatedly proffer. At no point did the proponents of Amendment 3 seek to change the “typically found” language, except, of course, after the fact, when it is too late.
Instead of adhering to the plain words of the text – “typically found in casinos” – the proponents of Amendment 3 offer up a “location-specific” and subjective “state of mind” test that bears no resemblance to the language actually employed.
By seeking to add new words – and, indeed, an entirely new meaning – to the “typically found” inquiry under section 30(b), the proponents of Amendment 3 are basically seeking to rewrite that clause both after the fact and entirely outside of the constitutional amendment process. Such “post-enactment” redlining violates yet another basic principle of statutory construction: i.e., the one that forbids courts (and parties) from adding new words to a statute that were not previously placed there.
There is one conspicuous omission in the list of examples: sports betting.
The Amendment 3 sponsor’s belated (and impermissible) attempt to add new words to the constitutional provision is only one-half of the legal checkmate it faces: the other equally significant barrier focuses on the words that are missing: “sports betting.” The words “sports betting” do not appear anywhere in Article X, Section 30 of the Florida Constitution. Similarly, there was no explicit reference to “sports betting” in either the ballot title or ballot summary of the Amendment 3 petition form.
There are several reasons why the omission of the words “sports betting” is legally significant. Under Florida law, a presumption exists in favor of a legislature’s power to act. See Gaulden v. Kirk, 47 So.2d 567 (Fla. 1950). Constitutional restrictions upon legislative power are to be construed strictly, and are not to be extended to include matters not covered by the language used. In Gaulden, the Florida Supreme Court placed a high burden on those who seek to challenge a legislative act as foreclosed by the state constitution, describing it as follows: “the burden is upon one who challenges the constitutionality of a law to make its invalidity clearly apparent.”
How it can be “clearly apparent” that section 30(b) prohibits the legislative authorization of sports betting when the constitutional provision does not once mention the words “sports betting” and ties the definition of “casino gambling” to “games typically found in casinos” as of November 6, 2018, when only a very small percentage of states with commercial casinos offered sports betting at those venues?
The obvious answer here is that it’s not “clearly apparent” that sports betting fits within the ambit of section 30(b).
This conclusion is bolstered by an examination of the listed examples of “casino gambling” provided in the text of section 30(b), beginning with the second sentence. That exhaustive list – covering 153 words over eight lines – states that the definition of casino gambling “includes, but is not limited to” the following examples: (1) “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)”; (2) “any player-banked game that simulates a house banking game, such as California black jack; casino games such as roulette, craps, and keno”; (3) “any “slot machines as defined in 15 U.S.C. 1171(a)(1)”; (4) “any other game not authorized by Article X, section 15, whether or not identified as a slot machine, in which outcomes are determined by random number generator or are similarly assigned randomly, such as instant or historical racing”; and (5) “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.”
What is the significance of such an exhaustive list? Well, under yet another rule of statutory interpretation known as ejusdem generis (latin for “of the same kind”), general expressions such as “including, but not limited to” which precede a specific list of included items should not be construed in their widest context, but apply only to things of the same general kind or class as those specifically mentioned in the list of examples.
Applying that interpretive principle in the context of section 30(b), it is evident that the listed examples share one very important characteristic that distinguishes them from sports betting: they are “games of chance” in which the outcomes are randomly determined, such as through the draw of a card, a roll of the dice, or by a random number generator.
By contrast, wagering on sporting events is widely considered to be a contest of skill, requiring substantial skill and knowledge in order to be successful. As New York’s Attorney General put it, sports betting involves “substantial (not slight) skill,” including “the exercise of a bettor’s judgment in trying to . . . figure out the point spreads.” In other words, it is the antithesis of a casino game of pure chance.
Further, unlike traditional casino games (such as slot machines, and card and dice games) which are played – and whose outcomes are primarily determined within the “four walls” of a casino, sports wagering centers on the results of real-world sporting events and athletic performances usually taking place outside of a casino property.
Along those same lines, it is also quite telling what activities section 30(b) expressly excludes from the definition of “casino gambling”: other skill-based gambling endeavors such as “pari-mutuel wagering on horse racing,” “dog racing,” and “jai alai exhibitions.” Just like with sports betting, the underlying performances associated with pari-mutuel betting on horse racing, greyhound racing and jai alai exhibitions take place – and the outcomes are determined – outside of a casino environment.
So, using an ejusdem generis analysis, the omitted activity of sports betting is clearly of a “different kind or class” than the games of pure chance included within the section 30(b) definition of “casino gambling.” It has much more in common with the other “skill-based” wagering activities – such as pari-mutuel betting on horse racing, dog racing, and jai alai exhibitions – that are expressly excluded from the definition of casino gambling.
In any event, between the listed examples of “casino gambling” and the exclusions therefrom, the sponsors of Amendment 3 have accomplished quite an impressive feat. They have managed to list every single type of Class III gaming (as denoted in the IGRA regulations) within the body of section 30(b) except for one notable and conspicuous omission: sports betting.
That is further evidence that the sponsors did not intend to include sports betting within the ambit of section 30(b). If that had been their intention, then they presumably would have gone to the trouble of mentioning it somewhere in the body of section 30(b) – just as they as they did with every other form of Class III gaming.
Their failure to do so – particularly given the exacting level of specificity and precision which they accorded to every other form of Class III gaming – speaks volumes here.
A similar proposal introduced in 2016 expressly included sports betting.
Amendment 3’s failure to expressly include sports betting within the definition of “casino gambling” is to be sharply contrasted with a similar proposal introduced at roughly the same time that was designed to give voters control over gambling.
In March 2016, former Florida Representative Jose Diaz (D. Miami) – who was then the Chair of the House Regulatory Affairs Committee – introduced House Joint Resolution 7113 (also referred to as PCB RAB 16-03), which proposed an amendment to the Florida Constitution to require that “any expansion of gambling” be authorized only by a constitutional amendment proposed by a citizen’s initiative petition and then approved by Florida voters.
It was strikingly similar to Amendment 3 — except in two critical respects.
HJR 7113 was broader than Amendment 3, which only addresses casino gambling.
Under HJR 7113, a citizen’s initiative petition would be required for any expansion of “gambling,” not just those that could be categorized as “casino gambling.”
It broadly defined “gambling” as all Class III gaming.
And, here is the money shot. In contrast to Amendment 3 — which does not mention “sports betting” — HJR 7113 specifically delineated “sports betting” as among the Class III games for which a constitutional amendment would be required. It stated that term “Gambling” means “any of the types of games that are within the definition of class III gaming . . ., including, but not limited to, . . . sports betting.”
That should pretty much end the debate over whether Amendment 3 (now Article X, Section 30 of the Florida Constitution) prohibits the legislative authorization of sports betting.
In fact, HJR 7113 lists every single Class III game that appears in 25 CFR § 502.4, including sports betting. Amendment 3 also mentions every Class III game in its definition of “casino gambling,” except for one notable omission: sports betting.
And it can’t said that the proponents were unaware of HJR 7113: a copy of HJR 7113 and the related legislative staff analysis were included as exhibits in the Workshop Notebook utilized in public hearings about the proposed citizen initiative that later became Amendment 3. That same notebook also included supplemental information (including a Q&A) provided by Voters in Charge, the proponents of Amendment 3.
By virtue of its inclusion in the Workshop Notebook (which was first published in April 2016), the proponents of Amendment 3 were clearly aware of the parallel legislative measure – which expressly included sports betting within its scope – but, for whatever reason, opted not to modify their definition of “casino gambling” to expressly include sports betting, despite having ample opportunity to do so.
Indeed, it would be another two-plus years before Amendment 3 appeared on the statewide ballot. Yet, the proponents of Amendment 3 left the definition of “casino gambling” intact (i.e., without any reference to sports betting) despite having notice of the broader – and more explicit – definition in HJR 7113.
While HJR 7113 was never enacted, its explicit inclusion of “sports betting” underscores the significance of the omission of the same term in Amendment 3.
HJR 7113 is far from an outlier. In Arkansas, for example, voters approved a constitutional amendment last year to allow “casino gaming” at four casinos.
Under the Arkansas ballot measure, the definition of “casino gaming” specifically included “accepting wagers on sporting events.”
It wouldn’t have been terribly complicated for the proponents of Amendment 3 to have included sports betting within the definition of “casino gambling” (similar to both of the above measures), particularly when they already went to the trouble of referring to every other species of Class III gaming in the proposed ballot measure.
Federal law distinguishes between casino gambling and sports betting.
The conclusion that sports wagering does not fall within the definition of casino gambling is buttressed by federal law. For example, the federal regulations governing gambling on Indian lands treat sports betting as a distinct form of “Class III gaming,” mentioning it in a different subsection (25 CFR § 502.4(c)) than casino games, card games, slot machines and lotteries.
The clear distinction between sports betting and casino gambling is also reflected in the federal Wire Act, which prohibits anyone “engaged in the business of betting or wagering” from knowingly utilizing a “wire communication facility” to transmit “bets or wagers” or “information assisting in the placing of bets or wagers on any sporting event” through the channels of interstate or foreign commerce (i.e., which generally means across state lines). Most courts have held that the Wire Act applies only to betting on sporting events, and does not reach the activity of casino gambling.
These examples further demonstrate that sports betting and casino gambling are not the same species of gambling (unless specifically defined as such under state law). While sports betting can take place inside a casino, it is not endemic to a casino environment. As the legislative history of PASPA makes abundantly clear, sports betting can be offered in a variety of different venues, not just at casinos. The Report of the Senate Judiciary Committee, the primary source of PASPA’s legislative history, noted that many states were considering the possibility of offering sports wagering as a lottery game, and as an amenity at horse racetracks and off-track betting parlors – even mentioning the prospect of Florida lawmakers including sports betting in that state’s pari-mutuel betting law in the early 1990’s.
That observation proved to be quite prescient. In the little over one year that has elapsed since PASPA was declared unconstitutional, a number of states have enacted statutes allowing sports wagering to take place in a wide spectrum of “non-casino” settings, such as at horse racetracks, professional sports stadia and arenas, bars and restaurants, as well as over the Internet. In fact, there are more states that allow sports betting to take place outside of a casino setting than there are states which confine it to those establishments (or through casino-affiliated websites).
Internet sports betting looks even less like “casino gambling.”
Based on the above, it would seem pretty straightforward to conclude that sports betting is not encompassed within section 30(b)’s definition of “casino gambling.”
But, even assuming that it is a close call – which it is not – would the legalization of mobile sports betting be a safer bet at least from a constitutional perspective?
After all, section 30(b)‘s definition of casino gambling requires, at a minimum, that the game under consideration be the type of game “typically found in casinos.”
Inherent in the term “casino gambling” is the word “casino.” The use of the word “casino” in the definition infers some kind of brick-and-mortar building or structure.
Indeed, Webster’s Third New World Dictionary defines a “casino” as a “building or room for gambling,” inferring that – just as in real estate – what ultimately matters here is “location, location, location.”
This is borne out by a number of court decisions that have relied on the dictionary definition in interpreting the scope of a constitutional amendment on “casino gambling.” For example, in 2017, the Florida Supreme Court – in analyzing the legality of the “Voter Control of Gambling in Florida” citizen initiative (Amendment 3) – stated that the definition used in the proposed ballot measure (with its emphasis on games “typically found in casinos”) – “generally comported” with the New Webster’s definition which equated casinos with a “building or room.”
The requirement of a physical location should, at the very least, enable the Florida Legislature to authorize internet-based sports betting (as many states have already done) without potentially running afoul of the constitutional language.
This conclusion is buttressed by previous public statements made by Voters in Charge, the sponsors of Amendment 3, who have acknowledged that internet-based daily fantasy sports contests are beyond the reach of Article X, Section 30. In a Q&A document, dated May 4, 2016, the sponsors of Amendment 3 stated that the proposed constitutional amendment on casino gambling “was originally written before the introduction of such games [referring to daily fantasy sports contests] and therefore does not specifically speak to this issue.” (see Tab “6”).
Considering the similarity between interactive daily fantasy sports contests and internet-based sports betting – both involve the risking or staking of something of value on the outcomes of sporting events for a chance to win a monetary prize – it stands to reason that the concession made by Voters in Charge about the non-applicability of the proposed amendment to daily fantasy sports contests should immunize sports betting as well, particularly to the extent that it is conducted over the Internet.
The involvement of the Florida Lottery — which is a constitutionally authorized agency — would negate any claim that sports betting is “casino gambling.”
The recent trio of bills introduced by Senator Brandes would install the Florida Lottery as the state regulatory agency overseeing sports betting. Senate Bill 968 would allow persons over the age of 21 and physically present in the state to place wagers on sporting events either directly with the Florida Lottery or through one of its licensees.
For a state that has a robust pari-mutuel gaming industry overseen by a different regulatory agency – the Florida Division of Pari-Mutuel Wagering – the proposal to run sports betting through the Florida Lottery may not seem like the obvious choice to some. But it might make sense as a constitutional matter if lawmakers want to mitigate the legal risk over whether sports betting meets the definitional criteria of “casino gambling.” Just as voter control of casino gambling is enshrined in the Florida Constitution, so too is the state-run lottery. Article X, Section 15 of the Florida Constitution authorizes the state lottery, which offers various Class III games, the net proceeds of which are required to be placed in a state education trust fund.
Since it is already a constitutionally-approved form of gambling, the state-run lottery would seem like a legally prudent path for sports betting. Indeed, the proponents of Amendment 3 have already stated publicly that the constitutional amendment “will not affect any game that the state can operate lawfully under Article X, Section 15.”
And that appears to be the thinking behind Senate Bill 968. Senator Brandes, the sponsor of the bill, told Legal Sports Report that he believes the Florida Lottery is “exempt” from the application of Amendment 3, noting that“[l]otteries operate sports betting in many states,” including in a handful of states that do not even have casinos.
But it might make more sense to have sports wagering – a game of skill – regulated by the Division of Pari-Mutuel Wagering, which already oversees “skill-based” wagering games such as pari-mutuel betting on horse races, greyhound races and jai alai. Sports betting would just be a natural extension of that authority. After all, if the state’s horse racetracks, greyhound tracks and jai-alai frontons are going to be among the select venues that are allowed to offer sports betting, then it would stand to reason that the activity should be overseen by the same regulatory body that is already tasked with regulating the other games of skill offered by those stakeholders.
While the Florida Lottery could serve as an effective guardrail against a potential constitutional challenge, it does not appear to be legally necessary given the interpretative principles and illustrative examples cited above, all of which make clear that sports betting is not casino gambling under the Florida Constitution’s definition.
This article was originally published in Forbes.com on January 5, 2020.