If sports betting sometimes happens in a casino, does that mean sports wagering is casino gambling?
The Supreme Court of Florida may need to answer that question, and much more, following the latest filing in one of the two ongoing legal challenges seeking to shut down online sports betting in the Sunshine State.
Friday was the deadline for Gov. Ron DeSantis and two other lawmakers to respond to the state-level challenge by two Florida gaming firms, who want the local Supreme Court to kibosh online sports wagering.
DeSantis and Co. argued in their (quite late) filing that the Florida Supreme Court should reject the petition for several reasons, including the "delay" in its arrival and the absence of the sovereign Seminole from the action.
The governor also claims writs of quo warranto, which is what's being sought by the gaming companies, are traditionally used to "oust from office individuals who had no valid title to that office, or to prevent officers with valid title from acting outside the arguable scope of their authority," not to have a law ruled unconstitutional.
Lastly, the governor says the petition fails on its merits, including by treating sports betting as casino gambling, which would require voter approval under the state constitution.
“Sports betting is not ‘casino gambling’ as that term is defined in the Florida Constitution, because it is not the ‘type of game typically found in casinos,’” the response states. “Section 30’s citizen-initiative requirement [in the Florida constitution] is therefore inapplicable. But either way, the compact and its implementing legislation are squarely within Section 30’s [Indian Gaming Regulatory Act] exception.”
Quick history lesson
The filing came the same day as the U.S. Supreme Court approved an extension by the two Florida gaming firms to file their request for a review of their federal case.
West Flagler Associates Ltd., Bonita-Fort Myers Corp., and Isadore Havenick (vice president of both companies) filed a so-called petition for a writ of quo warranto in September with the Florida Supreme Court seeking to shut down the legal standing for sports betting in the state.
The challenge is separate from the one still grinding its way through the federal court system, but it hits on some similar themes, namely, whether mobile sports betting should be allowed off the lands of the Seminole Tribe of Florida.
DeSantis struck a new gaming agreement with the Seminole in 2021, which was then approved by the legislature, that granted the tribe control over legal sports betting in the state, as well as the ability to offer craps and roulette at their casinos.
However, the compact’s provisions related to statewide online sports betting immediately came under fire by the West Flagler group. That resulted in the Seminole shutting down their Hard Rock Bet sportsbook in Florida in late 2021 following a federal judgment invalidating approval of the tribe's compact with the state. After a federal appeals court reversed that decision earlier this year, the Seminole relaunched Hard Rock in Florida in November.
Casino battle royale
But in their petition to the Supreme Court of Florida, the gaming companies allege the governor and lawmakers exceeded their authority by giving the Seminole the exclusive right to offer sports betting throughout the state without approval from voters. That approval is typically required in Florida, but there is an exception for gambling on tribal lands via a compact created under IGRA.
The West Flagler group alleges lawmakers tried to dodge the constitutional requirement for a referendum by inserting language into the Seminole compact and accompanying state law that “deem” online sports bets placed anywhere in the state to have occurred on tribal lands.
As a result, the companies asked the Florida Supreme Court for relief that would throw out the online sports betting-related parts of the compact and state law, which would likely again result in the shutdown of Hard Rock Bet in the state.
“The 2021 Compact and Implementing Law are a clear expansion of casino gambling in Florida without a voter-approved constitutional amendment by citizens’ initiative, as required by Article X, Section 30,” the petition stated. “In so doing, the Respondents have exceeded their authority in direct violation of the Florida Constitution.”
No vote necessary?
Since the petition was filed, Hard Rock Bet has resumed operations in Florida on a limited basis. In-person sports betting at the Seminole’s Florida casinos is also scheduled to start on December 7.
The West Flagler group moved to stop the relaunch of Hard Rock Bet in early November, but that request was rejected by the Florida Supreme Court. For the time being, then, online sports betting in Florida is safe, albeit in its restricted form.
One matter the Florida Supreme Court may need to sort out is the exact definition of sports betting and casino gambling, as the DeSantis group argues the former is not the latter, a key distinction under the state constitution. If sports betting were deemed casino gambling, it could trigger the need for a referendum.
“Sports betting is not a ‘type of game typically found in casinos,’ Art. X, § 30(c), Fla. Const., and so does not satisfy this element of the definition,” the filing states. “That renders Section 30’s citizen-initiative requirement inapplicable.”