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Judge reverses himself, decides ‘pre-reveal’ machines are slots

In a stunning reversal, a Tallahassee judge on Monday decided he had gotten it “wrong the first time around” and said games known as “pre-reveal” are in fact illegal slot machines. 

Circuit Judge John Cooper, however, was quick to say his change of mind was not influenced by the Seminole Tribe of Florida, but rather by further argument on how pre-reveal, or “no chance,” games actually play.

The Tribe’s lawyer had said that allowing the machines, which look and play like slots, violates their exclusive right to offer slot machines outside South Florida, imperiling the state’s future cut of the Tribe’s gambling revenue by “multi-billions of dollars.”

Whether pre-reveal games affect the Tribe’s deal is “a political issue,” Cooper said Monday. “My holding is not based upon whether (the Tribe) likes the ruling or dislikes the ruling.”

In March, Cooper issued issued a declaratory judgment that “pre-reveal” games weren’t slots. That was because players have to “press a ‘preview’ button before a play button can be activated.” If the outcome of the game is known, it’s not a game of chance, he said then.

But Barry Richardthe Tribe’s outside attorney, has previously argued Cooper misunderstood the game play: “The player is not wagering for the already revealed outcome, but rather on the next outcome, which is unknown.”

On Monday, Richard added: “Can anybody rationally believe the intent of the Legislature was to jeopardize (the state’s cut) … to allow these machines?”

Argument offered Monday dealt with the state law on slot machines, the nature of randomness, and whether the “unpredictability” of games of chance lies with the player or with the game.

“Once you walk up to the game, you see the outcome every time,” said Robert E. Turffs, attorney for Blue Sky Games, which designed the software that runs the games. 

Cooper countered: “But I have no way of knowing or predicting the next time, is that right?”

He also used an example of professional basketball player LeBron James shooting free throws. “The ball and the hoop has nothing to do with” James’ free-throw percentage—unless the hoop changes size every time he throws, Cooper said. 

The judge, in withdrawing his earlier ruling, said he had come to realize the game was a “series of plays,” including known and unknown outcomes.

Magdalena Ozarowski, attorney for the Department of Business and Professional Regulation (DBPR), said it’s the “later outcomes” of the game—not the one revealed to the player—that are unpredictable to the user. That’s what makes it a slot machine.

The case got started when DBPR agents found one of the games in a Jacksonville sports bar and told the proprietor the machine was an “illegal gambling device.”

The only way to remove the element of chance is to remove the pre-reveal software, Ozarowski added. Without that, you’d have a “box and a monitor.”

Kathey Bright Fanning, president of the Jacksonville-based Gator Coin II company that’s behind the machines, was in the courtroom for Monday’s proceeding. Afterward, she said she was “disappointed” with the judge’s turnabout.

“They’re wrong,” she said. “The Tribe is wrong.”

Cooper’s new decision will be “immediately appealable” to the 1st District Court of Appeal, he said: “Let’s call it a final judgment.”

Written By

Jim Rosica is the Tallahassee-based Senior Editor for Florida Politics. He previously was the Tampa Tribune’s statehouse reporter. Before that, he covered three legislative sessions in Florida for The Associated Press. Jim graduated from law school in 2009 after spending nearly a decade covering courts for the Tallahassee Democrat, including reporting on the 2000 presidential recount. He can be reached at jim@floridapolitics.com.

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