Warning! Amendment 3 Is Dangerously Misleading





Summary: Proposed Amendment Three to the Florida Constitution (Voter Control of Gambling) is misleading and far more expansive than most people believe. The exact impact of the Amendment is unknown, and it may have an unintended impact on Florida’s two Indian tribes. If it is passed now, it will be extremely difficult to undo.

The Seminole Indian Tribe of Florida and Walt Disney World have been the two main funders of proposed Amendment Three to the Florida Constitution. This Amendment, entitled “Voter Control of Gambling in Florida”, takes away from the Legislature much of the Legislature’s authority to amend gambling laws in Florida (the extent of which is uncertain), and instead requires a “citizens’ initiative pursuant to Article XI, section 3, in order for casino gambling to be authorized under Florida law.”

Many people mistakenly believe that the “casino gambling” referred to in Amendment Three is limited to bringing in big new casinos. The wording of the Amendment cross-references 25 CFR 502.4, and includes

(a) Any House banking game, including but not limited to –

(1)  Card games such as baccarat, chemin de fer, blackjack (21) and pai gow (if played as house banking games;
(2) Casino games such as roulette, craps, and keno

(b) Any slot machines as defined in 15 U.S.C. 1171(a)(1) and electronic or electro mechanical facsimiles of any game of chance

(c) Any sports betting and pari-mutuel wagering, including but not limited to wagering on horse racing, dog racing or jai alai; or

(d) Lotteries


The wording of the amendment specifically exempts pari-mutuel wagering by stating “As used herein, ‘casino gambling’ does not include pari-mutuel wagering on horse racing, dog racing, or jai alai exhibitions.” Note that there is no exemption in Amendment Three for the lottery language listed in 25 CFR! Depending on how Amendment Three is interpreted, this could have a significant negative effect on the Florida Lottery.

It is unclear what the actual effect of Amendment Three would be if it passes. This could be the Gaming Attorney/Administrative Law Attorney/Appellate Attorney full employment act. The Amendment may or may not be retroactive, meaning that it may or may not prevent types of gambling that are already legal in Florida. As the Florida Supreme Court determined when they ruled that the language could go on the ballot:

“The opponents primarily argue that the Initiative should not be placed on the ballot because it is unclear whether, if passed, the amendment would apply retroactively and what effect, if any, the amendment would have on gambling that is currently legal in Florida—including gambling that was previously authorized by general law rather than by citizens’ initiative. However, as the sponsor points out, the opponents’ arguments concern the ambiguous legal effect of the amendment’s text rather than the clarity of the ballot title and summary.” (Florida Supreme Court SC16-778, SC16-871)

Thus, the Florida Supreme Court specifically stated that the Amendment has “an ambiguous legal effect” and declined to rule whether or not the amendment is retroactive. If they haven’t determined if it’s retroactive, and say it’s ambiguous, how can voters know what it will do?


Language Confusing 


The wording of Amendment Three states that “Florida Voters shall have the exclusive right to decide whether to authorize casino gambling in the State of Florida.” What does that mean? Slot machines at Pari-Mutuels in Miami-Dade and Broward Counties are authorized by the Florida Constitution. Would it require a new Constitutional amendment to authorize it in different Counties, or at locations other than Pari-Mutuels? The Florida Lottery has certain types of games. Would a new Constitutional Amendment be required to change the tickets, add locations, or sell the tickets in a new style? Could the Florida Lottery use its existing authority to add keno? Would “skill-based gaming” be permitted as a variation on slot machines, or would they require a new constitutional amendment? Can slot machine manufacturers even bring out new styles or themes of slot machines? There are far more questions than answers.

If Amendment Three is construed broadly, so as to require an initiative for any new types of gambling in Florida, I believe that would eventually bring gambling at Florida’s pari-mutuels to an end. A few decades ago, slot machines were electromechanical. Today they are electronic, and video poker, video blackjack, etc. have been determined to be slot machines because they contain random number generators. I can’t predict what new types of gambling will occur in the decades to come, but I do know that there will be new types of gambling, and if the Seminoles and/or the rest of the U.S. can keep up, but the Florida pari-mutuels and Florida Lottery can’t, then the pari-mutuels and Lottery will fall by the wayside. Would any significant number of people gamble today at a quasi-casino that only had electromechanical games?

Amendment Three could be construed more narrowly and be interpreted as saying that this would only prevent new people from entering legal gambling in Florida. It could be interpreted as saying that because Florida’s current Constitution specifically permits casino gambling at pari-mutuels and specifically permits the Lottery, that casino gambling is already permitted at those locations (maybe just in Miami Dade and Broward, maybe not). Therefore, while no other new operators can be permitted to operate places where casino gambling as defined above occurs, any type of casino gambling would be permitted at the current locations authorized in Florida’s Constitution. It is impossible to tell at this time what the Amendment actually does.

Also, the wording of the amendment seems perhaps intentionally confusing. As a County Commissioner in Broward County, Florida, and a former State Senator, I am frequently asked questions about the proposed amendments. Broward has generally been supportive of casino gambling. Many people seem to be supporting this amendment because they are supportive of expanded gambling in Florida, frustrated with the inability of the Florida Legislature to expand this gambling, and therefore believe that passing this will give more local control, enabling the voters of Broward to pass expanded gambling.

The summary of the Amendment says that “Florida voters shall have the exclusive right to decide whether to authorize casino gambling”, but unless you follow the cross-reference to Article XI, section 3 of the Florida Constitution, the summary never explains whether the vote is a local vote or a Statewide vote. For example, the Platform Subcommittee of the Broward Democratic Party voted to support Amendment Three, because “Homerule gives citizens the right to decide on casinos being built in their cities, instead of Tallahassee”.

That is almost exactly the opposite of what the Amendment does. When I explain that Amendment Three requires a statewide petition drive, followed by a statewide vote (not a local vote) and passage by 60%, Broward voters seem horrified, and then oppose it. Please note that the Supreme Court ruling permitting the existing wording was approved by a vote of 4-2. Two Supreme Court Justices ruled that the Ballot Title and Summary were misleading.

In order to begin the initiative required by Amendment Three, it would require signatures from 8 percent of the voters in each of ½ of the state’s Congressional districts, and 8% of the total voters statewide, based on the number of votes cast in the last Presidential election. This is an amazingly high bar, and normally requires an extremely high expenditure of funds for paid petition gatherers. The Supreme Court of Florida would have to approve the wording of the proposed Petition. If all of this occurs, the proposed initiative would need 60% of the votes cast in order to pass. It is worth noting that many experts believe that Amendment Three will pass despite these obstacles. As of the date that I write this, it is estimated that the supporters of Amendment Three have raised over $27 million dollars, without any well-funded opposition thus far.

It seems quite clear that if Amendment Three does pass, it would be extremely difficult and expensive to try and rewrite the Constitution again to undo or amend this language to permit additional types of “casino gambling” in Florida. It is clear that an investment of tens of millions of dollars would be required to attempt to change the gambling laws, with no guarantee of success. Few if any companies would be willing to make that commitment. It may make sense for the Seminole Tribe to invest over ten million dollars because if Amendment Three passes, they believe that they would have a monopoly on all new types of gambling on Florida, including Sports Betting. It would make far less economic sense for any one company, which would be one of many companies engaging in gambling in Florida, to put up similar dollars without the same exclusivity that the Seminoles (and potentially the Miccosukees) would enjoy.


Possible Unintended Negative Consequences 


Finally, one of the biggest questions remaining is whether or not the Seminole Tribe of Florida may suffer from the law of Unintended Consequences. The Seminole Tribe clearly intended Amendment Three to not apply to Seminole Gambling. The wording of the Amendment states “In addition, nothing herein shall be construed to limit the ability of the State to negotiate gaming compacts pursuant to the Federal Indian Gaming Regulatory Act…”(emphasis added)  However, because of the wording that is used in the Amendment (and in a twist that only Lawyers can love), this may not be sufficient.

On November 14, 2007, and against my advice, Governor Charlie Crist signed a “Compact” with the Seminole Tribe of Florida. Former Governor Crist is a close friend, and I warned him in advance that the Governor does not have the authority to enter into a compact under the Indian Gaming Regulatory Act (IGRA). The Governor has the authority to negotiate a compact, but he does not have the authority to execute the compact without Legislative approval. When Crist signed the Compact, he was sued five days later by the Florida House of Representatives. The Florida Supreme Court decided this issue in Florida House of Representatives v. The Honorable Charles J. Crist, Jr., (999 So. 2d 601). The Court chose not to take up the general question of whether the Governor has the authority to enter into a Compact with Florida Indian tribes under any circumstances without Legislative approval, although they cited to several other State and Federal decisions, and in each cited case, the Governor was ruled not to have such authority. Following judicial principles of deciding cases on narrow grounds when possible, the Supreme Court ruled that it would violate the Constitutional Separation of Powers for the Governor to enter into a compact with the Indian Tribes when the compact gives the Indians a type of gambling otherwise illegal in Florida. The Court stated at page 613:

“The House claims that the Compact violates the separation of powers on a number of grounds…We find one of them dispositive. The Compact permits the Tribe to conduct certain Class III gaming that is prohibited under Florida law. Therefore, the Compact violates the state’s public policy about the types of gambling that should be  allowed. We hold that, whatever the Governor’s authority to execute compacts, it  does not extend so far. The Governor does not have authority to agree to legalize in some parts of the state, or for some persons, conduct that is otherwise illegal throughout the state.”

Crist negotiated a Compact with the Seminoles, but it required Legislative approval or ratification. The wording of Amendment Three only exempts negotiation of a Compact from Amendment Three. Of course, the New Governor of Florida will be able to negotiate a compact with the Seminole or Miccosukee tribes, as Governor Crist did. However, there is nothing in the language of Amendment Three that appears to exempt Legislative approval or ratification from Amendment Three. I believe that it would have been far clearer if Amendment Three said, “In addition, nothing herein shall be construed to limit the ability of the State to negotiate and ratify gaming compacts pursuant to the Federal Indian Gaming Regulatory Act…”. The word ratification is missing from Amendment Three. I know that the Seminoles feel that the wording of Amendment Three is sufficient to cover both negotiations and ratification. I know that other Lawyers who I respect have a different opinion. I offer no conclusion here, but I believe that this is another ambiguity which may need to be decided by the Florida Supreme Court, if Amendment Three passes by the required 60% vote.


(Steve Geller is the Principal Attorney of Geller Law Firm, and has been practicing law for over 35 years.   He is a Broward County Commissioner, and served in the Florida Legislature for 20 years — nine in the Florida House and 11 in the Senate.  When he left the Senate in 2008 because of Term Limits, he was the Minority (Democratic) Leader.

Geller, who was on the committees regulating gaming the entire 20 years he was in the Legislature, including serving as Chair,  is known as a gaming expert. He speaks across the United States at gaming-related conferences on Internet gaming, Indian gaming, Pari-mutuels, the future of Gaming in the State of Florida, the Lottery, cruises to nowhere, and most other gaming-related topics.  He is a registered lobbyist in Tallahassee for various clients, including gaming interests.  He has also provided analysis on Florida and national gaming issues to investment houses and has given legal opinions on gaming issues to numerous clients.)


17 Responses to “Warning! Amendment 3 Is Dangerously Misleading”

  1. City activist Robert Walsh says:

    Seems to me u Mr.Geller don.t like the fact that it puts the voter the say etc for casinos etc.Seems to me YOU will lose your lobby clients etc( u and Judy) cause way i see it , ir is entirely up the the voters innregards to gambling e yt? c.Am i missing something here?.Or am i right on target..

  2. City activist Robert Walsh says:

    Some typos- forgive me.To be clear the lobby people don.t like this proposal.It should be up to the residents( voters) not to greedy politicians.All the politicians( some) that lobby on the side could care less only their fees.Don.t worry guys im all for casino gambling.Why should the Indians make all the money.When casinos are put in certain areas its a win, win for everybody.Its tricky though.The location is the key to success..

  3. Ha Ha Ha says:

    Mr. Geller, believe it or not, Floridians actually remember how badly they got lied to and screwed over by the Legislature regarding gambling:

    When state lawmakers passed the lottery in 1987, they promised this money would not replace tax dollars meant for education. But Cathleen Morgan, chairman of the Lee County School Board, said that’s exactly what’s happened.

    “Every dime counts, regardless of the source,” said Morgan. “The disappointment is that it’s been used as a substitute for another source, so those funds have been diverted elsewhere. The actual state funding of public education went down. We continue to under-invest in public education.”

    In 1986, before the lottery was approved, the state funding made up 64 percent of the education budget. In 2017, state funding accounted for only 56 percent.

    Cry your tears, Mr. Geller. It’s payback time!!


  4. Connie Delagaldo says:

    Good points. Why haven’t we seen this anywhere else?

  5. D Richardson says:

    Apparently, Robert Walsh and Mr/Ms. HaHaHa, you did not read the amendment or the excerpts contained in this report/article.
    Read the thing first, and why would the Hard Rock support this, if it did not solely benefit their interests?
    Because of the present laws about getting this on a ballot, the required signatures from each congressional district it is extremely unlikely to happen.
    The Seminoles have done their homework, and you can bet they will fight any misinterpretation that would harm them.
    Ask yourself this question: Why in the world are the Seminoles that have a monopoly, supporting anything that would hurt their casino revenue?
    I hope everyone will read all rulings, and laws, and consider that question deeply.
    Thousands of jobs depend on Florida Gaming outside of the Hard Rock for their families income. Many of them make $2-4 per hour, and on tips, just as waitress/waiters in a restaurant.

    D. Richardson

  6. Steve Geller says:

    MR. WALSH. One of my areas of practice is gambling law. This constitutional amendment is so vague that if it passes, lawyers like me will get to litigate it for years. I’m not sure that you understood my point. If it was up to the local voters, I’d be all for it. It’s not up to the local voters. It would actually make it more difficult for Broward to get what we want.

    MR. HA: First of all the Legislature did not pass the Lottery in 1987, and whatever source you’re quoting is incorrect. The lottery was a constitutional amendment passed through the Initiative process, and was therefore never passed by the Legislature. It passed through Statewide referendum in 1986. The Legislature therefore only passed enacting/implementing legislation in 1987. I know this because I was elected to the Legislature in 1988, and later chaired the gambling committee. When I retired from the Legislature in 2008, I was the last person left that had been one of the sponsors of the 5 bills that were combined to create the Bright Future Scholarship bill. Please don’t forget Bright futures.

    I agree that the % of the budget that has gone towards education has declined. There have been dramatic increases in the % of the budget going to health care and prisons. The Legislature chose to give billions of dollars in tax cuts, primarily to businesses. I agree with you that this is a problem. I fail to understand what relationship that has to Amendment 3.

    MS. DELGADO: I wrote this column as part of a scholarly article I posted on my gambling law blog, primarily for gambling law experts. Buddy published an edited version.

    You haven’t heard this point of view because all that you’ve seen are the TV ads that are all financed by groups supporting Amendment 3. I have seen no advertising from opponents of Amendment 3. I am being paid by no one on this issue. I am offering my expert opinion, and I assume that you can see that this was a well-researched opinion.

  7. Zowie says:

    Gee, a career lobbyist for the gambling industry opposes a proposal to let the voters decide. I’m shocked.

  8. City activist Robert Walsh says:

    #6.Your self admission that you are a gambling atty.states volumes.However, u bring up a great point that all florida residents would decide about such stated casinos not the particular county it desires to go in.In closing their are no flies on you.That being stated speaking of voters decideing this issue etc.My focus is on felony voting.If , if this passes with 60% deal me in, all in( running for Ft.lau mayor).My slogan” together we can do this”..Will see in a few weeks.Thanks for responding to my comments concerning your blog subject.Ps.Buddy gave u the floor- impressive…

  9. DAVID BROWN says:

    I’m voting NO on Amendment 3 because if Broward wants to expand gambling options IN BROWARD or if Broward needs expanded gambling options IN BROWARD to protect our local jobs and tourism I am quite sure the voters in Florida’s panhandle or Tampa or Jacksonville will not vote to help us. They NEVER have.
    Not for gaming and not for public schools.
    We are on our own. Don’t give residents outside Broward the power to control our future.

    I am a political consultant but I am not a lobbyist. I have run the campaigns of Steve Geller and Jim Waldman when they were in the legislature and were considered leaders at the outset of gaming in Florida.

  10. City activist Robert Walsh says:

    #9.I say poo.I state the sand,sun,serf and the dice..

  11. No More Casinos says:

    Steve Geller was a puppet of the gambling lobby when he was in the Florida Senate and he still is as a Broward County Commissioner.
    If he is against Amendment 3, then it is bad for the industry and good for Florida. Steve Geller epitomizes the reason that Florida voters must take control of gambling away from the politicians!

  12. Floridan says:

    I’m voting no on this amendament also. Why should voters in Escambia County help decide if Broward County wants more gambling (or vice versa)?

    Too many of the amendments on the ballot are either misleading or contain issues only tangentially related to the main provision.

    When in doubt, vote no.

  13. Ha Ha Ha says:

    Republican Will Weatherford, a former Speaker of the Florida House, strongly advocates a YES vote on Amendment 3:

    Casino interests have become one of the most powerful special interest groups in Tallahassee. The pressure they apply to the political process is nonstop. It is why, almost every legislative session, we see casino expansion on the agenda.

    The Legislature only meets for 60 days every year, so there is much to do and little time to do it. The time, energy and resources spent on gambling bills have made them an ongoing diversion. It is frustrating to see the priorities of Floridians — such as jobs, education, health care and the environment — take a back seat to the priorities of casinos. …

    No matter how many casinos are approved, no matter how many forms of gambling are allowed, the demand for more will come as quickly as the next legislative session. It is what I once called the drip, drip, drip of gambling expansion. …

    Tallahassee is not the place for gambling decisions.

    If nothing more, taking gambling off the political agenda will allow lawmakers to focus on the issues that matter most to their constituents.

    Florida certainly wouldn’t be alone in allowing voter control over gambling. About half of the states have a similar requirement. …

    Voter control works. That is why I proposed restoring it in 2014 and why I support Amendment 3 now.


  14. Ha Ha Ha says:

    Don’t fall for it: Casinos are not good for children, education

    Whenever they want to expand casinos, out come the “poor” children and schools.

    And what happens if casinos win and set up shop? The money goes to them and politicians, and not schools.

    Florida saw this in 2004 when South Florida pari-mutuels promised $500 million windfalls for public education if they were allowed to have slot machines. In fact, they said it was an “absolute guarantee” that they would back.

    They got their slots, but the schools never got the half-billion.

    Add to that the Florida Lottery windfall (which schools also never got), and Florida currently ranks 42nd nationally in school funding.

    Florida teachers, who also rank 42nd in salary, are forced to pay for school supplies (nearly $500 a year) out of their own meager paychecks.

    Of course, all that will turn around if only Floridians allow — wait for it — even more gambling.

    Joining the big lie this time is MGM Resorts International, a gambling conglomerate based in Las Vegas, looking for a jackpot in Florida.

    If you want to know how casinos helped schools in Nevada, consider this: The state’s education system has ranked dead last in the nation for the past three years, according to the prestigious Quality Counts analysis performed by Education Week. It ranks below Mississippi in per-pupil spending — by more than $1,000 a student.

    Does anyone seriously believe MGM Resorts cares anything about Florida school children?

    MGM had done this before, spending millions on a casino referendum in Maryland in 2012. That campaign promised, “millions for Maryland schools, guaranteed.”

    Critics called it “slots for tots.” The Baltimore Sun called it “nothing more than Las Vegas casino hooey.”

    And that’s what it turned out to be.

    The massive MGM National Harbor Casino and Hotel is now up and running in Maryland, while schools struggle without the money that never arrived.

    State Comptroller Peter Franchot told Baltimore’s WJZ-TV: “The problem is, it was always a hoax and it’s still a hoax perpetrated on the public.”

    A report in CityLab noted: “Experts on gambling and state funding say that Maryland is only one of the dozens of states taking gambling revenue meant for education and using it for other purposes.”


  15. John Jay Frank says:

    It seems to me that this amendment along with your description of how it works is worded so nobody without a law degree can understand. I’m not a gambler so it really doesn’t affect me. I am however in agreement that the people of the state should have a say in the matter. If you happen to be against gambling, simply do go gamble. Consenting adults should be able to do as they please.

  16. Francis Farnum Snr says:

    15. John,

    How this will work is that Billy Bob in Tim Buck Too Florida will vote “yes” for a Casino to be built behind your house.Does not affect his quality of life in any way?

    Is that ok by you? Sometimes democracy has its limits.

  17. Ha Ha Ha says:

    Amendment 3 has passed, with 71.46% voting YES for Voter Control of Gambling in Florida.

    Amendment 13 also passed, with 69.05% voting YES to End Dog Racing.

    Florida politicians: for decades you lied, cheated, and stole BILLION$ in gambling money from Florida’s schools – NOW PAY UP!!!