Florida high court overturns Seminole compact
MIAMI, Fla. - The Florida Supreme Court has issued an opinion that Gov. Charlie Crist exceeded his authority by entering into a gaming contract with the Seminole Tribe that allows the tribe to offer types of gaming that are illegal elsewhere in the state.
The July 3 majority ruling was issued barely two weeks after the Seminoles introduced baccarat, blackjack and other table games at the Seminole Hard Rock Hotel & Casino in Hollywood, Fla.
The decision struck down a gaming compact signed in late November by Crist and the Seminoles that permits the tribe to operate card games, such as blackjack and baccarat, which are otherwise prohibited by law in Florida.
The decision is the latest twist in the Seminole;s 16-year quest to offer Class III gaming at its seven casinos - an effort that had been stalled and blocked by four different governors and the Legislature.
Crist signed the compact a day before the Interior Department set a Nov. 15, 2007, deadline for the state to enter an agreement with the Seminoles or the department would grant the tribe the ability to offer slot machines - but not blackjack - and the state would not get a cut of the profits.
The 25-year compact gives the Seminoles the exclusive right to offer the card games and guarantees the state a minimum of $175 million the first year, $150 million for the next two years and $100 million a year thereafter. The Seminoles have already paid the state $50 million.
Within days after the compact signing, the House of Representatives and its speaker, Marco Rubio, filed a challenge in the high court, disputing Crist's authority in a petition for a ''writ of quo warranto.'' ''Quo warranto'' means ''by whose authority'': Rubio and the House were asking the court to rule that Crist did not have the authority to sign the compact.
The court granted the ruling, but ''on narrow grounds,'' wrote Justice Raoul Cantero in the majority opinion.
''What is legal in Florida is legal on tribal lands, and what is illegal in Florida is illegal there,'' Cantero wrote in reference to Florida's Public Law 280, which grants the state criminal and civil jurisdiction on Indian lands.
''The governor does not have the constitutional authority to bind the state to a gaming compact that clearly departs from the state's public policy by legalizing types of gaming that are illegal everywhere else in the state.''
The decision did not address the core issue that Rubio and the House had raised - whether the governor has the authority to enter into a gaming compact with a tribe.
The ruling pleased Rubio nonetheless.
''The court's decision is a victory for our constitutional system of checks and balances,'' Rubio said in a statement. ''I look forward to an open and deliberative process that results in a new compact that doesn't unnecessarily expand gambling in our state and that's fair to our taxpayers. In the meantime, I trust that Gov. Crist and the Seminole Tribe will abide by the court's decision and act in accordance with the law.''
The tribe will continue to offer its new gaming options, tribal spokesman Gary Bitner said. The decision is not final until the court rules on a motion for a re-hearing.
''Depending on the final decision by the court, the tribe may seek review by the U.S. Supreme Court,'' the statement said. ''The tribe is under no legal obligation to suspend its operation of banked card games or any other games.''
Crist was not available for comment July 3, but his office released a brief statement in response to media requests: ''The governor's office is currently reviewing the order issued this.''
It's not clear how the issue will be resolved. Interior approved the compact in January and has authority over Indian gaming. It's not likely that the Legislature would ratify the compact after its fierce opposition and court challenge. Nor is it known whether the Seminoles would re-negotiate a compact that limits them to the slot machines allowed at non-Indian gaming venues in the state. The tribe has the option to appeal to the U.S. Supreme Court.
In its discussion of whether the governor had constitutional authority to executive the compact without the Legislature's prior approval or subsequent ratification, the court turned to case law for precedents and found several examples in both state and federal cases that said the governor has the authority to negotiate a gaming compact but not to implement it, which is a legislative function.
But Justice R. Fred Lewis, who concurred with the decision ''in result only,'' argued in an opinion that the governor is constitutionally authorized to act in circumstances such as the gaming compact where the Legislature has failed to act for an extended period of time and created a situation that could negatively impact the state and its citizens.
''In an effort to protect Florida from the results of the federal Department's clear statement that it would issue Class III gaming procedures [under which the state would receive no revenue and possess no control over the Tribe's gaming operations] and the pending legal action, the governor negotiated a compact. Under these imminent circumstances, the governor's action constitution 'necessary business,' which that office was required to address in an attempt to protect the public interest,'' he wrote.
He also questioned whether the court acted with proper jurisdiction in accepting a petition for a ''writ of quo warranto.''
''[T]his court should only grant a writ of quo warranto where the officer or agency lacks the authority to act, not where the officer or agency has improperly exercised its authority,'' Lewis wrote, noting that a more appropriate action would be a declaratory judgment.
The Seminole Tribe's Class II games debuted with a glitzy star-studded event June 22, and lines of people waiting to play.
The Seminoles unveiled what was thought to be the first legal blackjack and other table games at the Seminole Hard Rock Hotel and Casino Hollywood.
But court decisions were not on anyone's radar on opening night. The games kicked off around 6 p.m. at the casino in Hollywood with a ceremonial smashing of a guitar by rock musician Rob Patterson, plumes of smoke and puffs of confetti, according to a report in the Miami Herald.
Tribal council members Mitchell Cypress and Richard Bowers bookended former ''Baywatch'' star Carmen Electra. Electra and Patterson, her fiance, hosted the first blackjack deal, according to local media reports.
Opening night also attracted Miami Heat guard Dwayne Wade, former Heat player Eddie Jones, and Lorraine Bracco from ''The Sopranos.''
The 71 tables were full, with 55 initially designated for blackjack, six for three-card poker, three for Pai Gow poker, three for Let It Ride, two for baccarat and two for mini-baccarat. The games began with minimum bets of $25 and limits of $5,000, although demand will dictate the minimum bets later on, casino officials said, according to the Miami Herald report.
The Sun Sentinel reported that players lined up three and four deep at the casino's 55 blackjack tables, waiting to play on what Seminole Tribe CEO James Allen called ''a historic day.''
''For many, many years, the tribe has pursued this dream, and tonight we fulfill our goal,'' he said. He referred to the compact the tribe and the governor reached last fall, allowing the tribe exclusive rights to table card games in exchange for at least $100 million a year to the state.
Tribal spokesman Gary Bitner said the casino has been packed daily since its opening.
''It's going very well,'' Bitner told Indian Country Today. ''In the first two weeks of play there was approximately - as close as we can figure - about 40,000 players. The 71 tables have been slammed almost 24 hours a day.''
The Hard Rock Cafe is the first of the tribe's seven casinos to offer blackjack. The tribe introduced Class II slot machines last January after the Interior Department approved the tribal-state compact.
Bitner said the economic downturn hasn't affected the Seminole casinos.
''All of the Seminole casinos have done very well with the introduction of slot machines. It's certainly a case of good timing to have new machines coming in at a time when gaming has flipped a little bit, because it hasn't flipped here. The new games are attracting more players.''
But the tribe's non-Indian gaming competitors are feeling the heat, according to the Miami Herald.
Dan Adkins, an executive with Mardi Gras Racetrack and Gaming Center, said his Las Vegas-style slot machine casino in Hallandale Beach is having a hard time competing against the tribe, the report said. The tribe does not pay state taxes, but the other casinos pay 50 percent of revenues.
''They are advertising and marketing so much - we just can't keep up. They have such an advantage over us. This tax rate is terrible,'' Adkins said, according to the report.