Jim Rosica
A federal judge shellacked an attorney for the state of Florida during closing arguments Friday in a trial over whether the Seminole Tribe gets to continue offering blackjack to its casino customers.
U.S. District Judge Robert Hinkle peppered the state’s counsel with questions about whether gambling regulators basically allowed the state’s non-tribal cardrooms to offer games that broke the exclusive rights to blackjack promised to the Seminoles in 2010.
At issue was a 2011 administrative rule allowing what’s now known as “designated player games.” The tribe says they operate too much like, if not identically to, games like blackjack that are “banked card games.”
That means players compete against only another player called the “bank” — usually, but not always, the casino itself or the “house” — but not as in traditional poker where players all compete against each other.
Blackjack and other gambling, including slots, has brought in billions for the tribe, making it arguably the richest American Indian tribe in the country.
“If I find that the rule authorizes a game that is a banked game, then the tribe can keep offering banking games for 20 years,” Hinkle asked Anne-Leigh Gaylord Moe, a lawyer with the Bush Ross law firm hired by the state. The Seminole Compact provides for the tribe to keep its blackjack tables if the state allows others the same games.
Challenged by Moe that the rule in question didn’t allow that, Hinkle suggested moving to another issue: “You’re not going to win that argument; you’re just not.”
One gambling regulator suggested in a deposition that higher-ups at the Department of Business and Professional Regulation (DBPR) had essentially approved a banked game for the Daytona cardroom, though Deputy Secretary Jonathan Zachem disputed that in testimony Tuesday.
With her closing argument time dwindling, Moe stuck to the rule issue, with the caveat that she wasn’t trying to “aggravate the court.” Hinkle responded with a grin: “You’re not going to aggravate me one bit.”
The state and tribe are in court after lawmakers earlier this year failed to approve a renegotiated agreement that would have meant continued exclusivity — or freedom from competition — to offer blackjack in return for a $3 billion payout to state coffers over seven years.
The original five-year deal, in the context of a larger 20-year gambling agreement, brought a total of nearly $1.7 billion to the state.
Moe defended the rule on designated-player games, saying the villains were the state’s pari-mutuel facilities — horse and dog tracks that also operate cardrooms — who “exploited” the rule to their benefit.
Earlier this year, gambling regulators came down on cardrooms across the state, filing administrative complaints against seven racetracks.
An administrative law judge later found the cardrooms were flouting the law by allowing third-party companies to buy their way into the games, by anywhere from $30,000 to $100,000, using a worker to act as a virtual bank.
Hinkle called those games an “end run around the prohibition,” saying a player acting as bank is no different from the casino being the bank, and the state’s agreement with the tribe allows exclusive rights to “banked card games.”
Seminole Tribe attorney Barry Richard with the Greenberg Traurig law firm made the same point in his argument: “Why would the tribe agree to pay all this money if the pari-mutuels could present the exact same games?”
DBPR Secretary Ken Lawson attended court Wednesday but declined to answer reporters’ questions, including if he plans to resign should Hinkle rule for the tribe.
Hinkle agreed to allow the state’s lawyers to file still another brief supporting their position next Friday before he rules. He was unclear how long he would take to reach a decision.
The judge cautioned the attorneys not to divine which way he was leaning based on what he was asking: “Questions are just questions.”
