• Counsel for West Flagler submitted a 52-page response to a recent Seminole Tribe brief in support of Florida online sports betting
• West Flagler argues that Florida’s Amendment 3 requires state voters to approve any and all casino gambling expansion, which includes sports betting
• Included in the 52-page response is previous commentary from opponents of the lawsuit supporting sports betting being included in Amendment 3

In a 52-page response submitted to the Florida Supreme Court, West Flagler Associates argued that the approval of Florida online sports betting should ultimately be decided by state voters and showed instances of opponents of the lawsuit agreeing to that same sentiment in previous years.

Counsel for West Flagler wrote in the response that Florida’s Amendment 3, which requires voters to approve any and all “casino gambling” expansion, does indeed include sports betting. Included in the response are several instances of opponents of the lawsuit supporting that sentiment in 2018.

West Flagler submitted its response to the Seminole Tribe’s recent amicus curia brief supporting Gov. Ron DeSantis (R) and his legal counsel’s request to dismiss West Flagler’s writ of quo warranto to strip the online sports betting language out of the state’s 2021 gambling compact.

Is Sports Betting Casino Gambling Expansion?

Raquel A. Rodriguez, counsel for West Flagler, wrote in the response the Seminole Tribe insists sports betting is not listed in Amendment 3’s definition of casino gambling, arguing that the phrase “any of the types of games typically found in casinos” should be limited to games in which outcomes are determined randomly.

The Tribe, Rodriguez notes, proposes a definition limiting “casino gambling” to “closed-universe games with defined statistical outcomes,” while sports betting involves “competitive, real-world events in which bettors try to predict outcomes.”

“This manufactured and artificial distinction directly conflicts with the compact. The compact defines a covered game to include “sports betting,” just like slots and table games. Where subsection (b) lists card games and slot machines as examples of casino gambling, the compact similarly treats all sports betting as a gaming activity. This interpretation thus contravenes basic canons of construction,” she wrote.

The intent from both sides when discussing Amendment 3’s ballot language in 2018 was to include sports betting as an example of what “casino gambling” entailed. Rodriguez showed a comment from an opponent of this lawsuit to then Florida Supreme Court Justice Barbara J. Pariente’s question about the effectiveness of Amendment 3 to authorize casino gambling.

“I’ll give you a perfect example. Internet gambling and sports betting are the biggest things right now – there is lots of effort in Washington D.C. to try and deal with both of these,” the opponent said.

Both sides, she argued, agreed that Amendment 3 would require a ballot initiative to authorize sports betting, because it’s a type of game “typically found in casinos.”

West Flagler: “Through these sports betting examples, both sides agreed that Amendment 3 would require a ballot initiative to authorize sports betting, because sports betting is a type of game ‘typically found in casinos’ if and when available.” pic.twitter.com/5s2gI8WkRm

— Daniel Wallach (@WALLACHLEGAL) December 26, 2023

IGRA Only Authorizes Gaming on Tribal Lands

The Indian Gaming Regulatory Act (IGRA) only authorizes gaming on tribal lands, Rodriguez notes, and mobile sports betting takes place off tribal lands. She argues that proponents of the gaming compact reference the D.C. Circuit’s discussion of the section of IGRA that allows for “other subjects that are directly related to the operation of gaming activities.”

To fall within this exception, the IGRA compact must do what the D.C. Circuit court decision makes clear it cannot do, to authorize the gaming activity in question, she wrote.

“Respondents are thus caught in an inescapable trap. The only way to expand casino gambling under state law is by having that gaming authorized through an IGRA compact, but under the D.C. Circuit’s decision, such authorization of off-tribal-lands gaming is not possible under IGRA,” Rodriguez wrote.

So What Happens Now?

The Florida Supreme Court will now consider the arguments from either side and ultimately decide if it wishes to approve West Flagler’s writ of quo warranto to hear the lawsuit.

West Flagler’s recent request for an extension to file a lawsuit with the Supreme Court of the United States was granted last week, giving the petitioners until Feb. 8, 2024, to file a suit with SCOTUS. West Flagler argued that it could not file a complete petition with SCOTUS without first knowing the outcome of its lawsuit with the Florida Supreme Court.

The Seminole Tribe will likely continue to offer online sports betting throughout the state while the lawsuits are being determined. It recently launched in-person sports betting at its Florida casinos earlier this week on Thursday, Dec. 7.

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