Market update: Florida
Further and most importantly, the bill also created the Division of Gaming Enforcement (“DGE”) as an entirely new criminal justice agency within the Commission. Each employee within the DGE must be a Florida certified law enforcement officer. These agents are tasked with enforcing the laws under the Commission’s jurisdiction and the rules properly promulgated thereunder, authorized to seize any contraband related to gaming violations and have the power to arrest alleged violators and enter, search, and inspect any location where there is reason to believe a violation has or is occurring. Essentially, the Florida Legislature created a singular law enforcement agency tasked with nothing but enforcement of Florida’s gambling laws as a way to fill the void left between PMW’s lack of authority and the lack of interest held by more generally tasked law enforcement agencies. However, because the FGCC is charged with both regulatory and criminal justice functions, it must be able to perform on both fronts. Through the legislative budget transfer, the Commission retained the former PMW’s administrative law attorneys, and under the guidance of General Counsel Ross Marshman, these attorneys advise the Commission on issues that arise under chapter 120, Florida Statutes (Florida’s Administrative Procedure Act), such as the creation and promulgation of Commission rules or licensing determinations before the Commission, and also the handling of the prosecution of administrative, non-criminal violations by licensees. Additionally, the FGCC’s Office of General Counsel also serves in an advisory capacity to the Executive Director on issues ranging from legislative proposals to media inquiries to the full and complete scope of the Commissioner’s authority. Despite the FGCC being in its relative infancy, it is under pressure to hit the ground running and make a difference in the state. Already, Commission representatives
have had to address the grey-market slot issue publicly when the Jacksonville City Commission was presented with an ordinance proposal that could have ostensibly permitted the machines to be played in Duval County in clear violation of state law. The issue will likely continue to be high-profile for the Commission until it either chooses to mobilize its resources in a commitment to take action against operators or acquiesces to the operation of these machines. Given the economic and political interests on both sides of the issue, a rare one in which those in favor of the expansion of legalized gaming and those who seek to restrict expansion are on the same side, it is one that the FGCC should not ignore. Moreover, the Commission must also navigate the state-federal cooperative regulatory scheme envisioned by the creation of the federal Horseracing Integrity and Safety Authority (“HISA”). Finally, each of these issues operates in the shadow of Florida’s attempt to enter into a new gaming compact with the Seminole Tribe in 2021. The validity of the newest compact is currently being litigated at the federal appellate level, and the outcome will greatly impact both the landscape of gaming in Florida, as sports betting (both in-person and mobile), fantasy sports contests, an expansion of tribal gaming into roulette and craps, and state revenue projections going forward. Should the compact be reinstated, the Commission will be responsible for its application and enforcement, including ensuring the exclusivity of certain gaming types guaranteed to the Seminole Tribe within Florida’s borders. In all, Florida’s new Gaming Commission has its work cut out for it as it gets its arms around the nation’s third largest gaming market. As the new agency is nurtured by its new commissioners, significant domestic and international gaming interests are taking note as their actions will likely ripple across other jurisdictions.
Marc W Dunbar is Managing Partner of the Tallahassee office of the Dean Mead law firm. mdunbar@deanmead.com +1 850 999-4100 Daniel McGinn is an associate attorney with Dean Mead’s Regulated Industries team.
44 • IMGL Magazine • November 2022
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