Jim Rosica – Florida Politics

Jim Rosica

Jim Rosica covers state government from Tallahassee 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.

Second group forms to fight gambling amendment

A second political committee has registered to oppose a proposed state constitutional amendment requiring voter approval of new gambling.

Citizens for the Truth About Amendment 3 registered on Wednesday, Division of Elections records show.

It’s chaired by Dan Adkinslongtime head of Hallandale Beach’s former Mardi Gras Casino and Race Track. The group’s formation paperwork and initial campaign finance information were not available online; Adkins could not be immediately reached. 

Amendment 3, backed by Disney and the Seminole Tribe of Florida, aims at limiting gambling’s expansion in the state. The amendment would “ensure that Florida voters shall have the exclusive right to decide whether to authorize casino gambling,” the ballot summary says.

Last week, the “Vote NO on 3” committee registered, chaired by South Florida’s Isadore “Izzy” Havenick, whose family operates Magic City Casino in Miami and Naples-Fort Myers Greyhound Racing & Poker in Bonita Springs.

“It shows how everybody is concerned that someone is trying to put us all out of business,” said Havenick, who added he did not know who else was behind the new committee.

Adkins and Hartman & Tyner, the property management firm that owned the Mardi Gras for over 40 years, recently settled dueling lawsuits against each other.

As Florida Politics reported in March, Adkins accused H&T of lying to him that he’d be paid “millions of dollars” upon sale of the company’s gambling businesses in Florida, West Virginia and Michigan.

H&T countered that the 60-year-old Adkins “engag(ed) in self-dealing, corporate waste, and gross mismanagement.”

The facility now is owned by billionaire real estate investor Jeffrey Soffer and was rebranded as “The Big Easy Casino.”

Gambling regulators last month granted Soffer’s request for a slot machine license. That license was approved May 2 – one day after news that Soffer had closed on a $12.5 million deal to buy the property.

SImone Marstiller

Personnel note: Simone Marstiller appointed to Judicial Management Council

Simone Marstiller, a retired appellate judge, has been appointed to the Florida Supreme Court’s Judicial Management Council.

Marstiller now is with the Gunster law firm’s appellate and government affairs teams, based in the Tallahassee and Tampa offices.

The council “serves as high-level management consultants to the Supreme Court and (is) responsible for assisting the chief justice in proactively identifying trends, potential crisis situations, and the means to address them,” a press release said.

Marstiller, appointed by new Chief Justice Charles Canady, will serve a four-year term ending June 2022.

“Florida citizens and businesses deserve a fair, accessible, well-functioning court system, and I’m eager to use my experience as a judge and lawyer to help achieve that goal,” she said in a statement.

The Liberian-born lawyer had been in private law practice after serving 2010-15 as a judge of the 1st District Court of Appeal, based in Tallahassee.

Her long resume includes being Secretary of the Department of Business and Professional Regulation, interim Secretary of the Department of Management Services, Deputy Chief of Staff, and state Chief Information Officer under Gov. Jeb Bush. 

She also was Associate Deputy Attorney General under Attorney General Bill McCollum and Executive Director for the Florida Elections Commission.

Marstiller is an adjunct professor at Florida State University’s College of Law and at Stetson University’s law school. She also got her undergraduate degree in business administration and her law degree from Stetson.

What’s a slot machine? Florida court will decide

If a video game looks like a slot machine, plays like a slot machine, and pays out like a slot machine, is it still a slot machine if you know whether you’re going to win or lose?

No, said an attorney for a Jacksonville company that distributes what are called “pre-reveal” games, which can be found across the state in bars and taverns. A three-judge panel for Tallahassee’s 1st District Court of Appeal heard argument in the case Tuesday. 

The games “preview” outcomes as to their winning or losing nature. Judge James R. Wolf said the case wasn’t really about knowing the outcome of any individual play, but whether there was unpredictability in the “entire course of play.”

“I understand you don’t have to keep going, but come on, don’t make the argument they made in the trial court that people put money in just to see the fancy lights glow; that’s not why people put money in this machine,” he told Bryan DeMaggio, the attorney for Gator Coin II.

“They’re putting money in this machine because of an unpredictable outcome that’s going to come up,” Wolf added. Other states, including Indiana and North Carolina, have found pre-reveal games to be illegal gambling.

But, DeMaggio said, “if the player knows each outcome, then he knows” the entire course of play. “There are multiple levels you can click on … you can click around for 30 or 45 minutes looking at outcomes.”

The case began when Department of Business and Professional Regulation (DBPR) agents found one of the games in a Jacksonville sports bar and told the proprietor the machine was an “illegal gambling device.”

After first deciding “pre-reveal” games aren’t slots, Circuit Judge John Cooper of Tallahassee reversed himself last year, saying he had “(gotten) it wrong the first time.”

Cooper changed his mind after a hearing in which Barry Richard, a lawyer for the Seminole Tribe of Florida, told him the machines violate the Tribe’s exclusive right to offer slot machines outside of South Florida, imperiling the state’s future cut of its gambling revenue by “multibillions of dollars.”

The judge, however, said his reversal was based on further evidence on how the pre-reveal, or “no chance,” games — as its software maker prefers to call them — actually play.

His new order said that “to have a chance to receive an outcome other than what is currently displayed by the preview feature, the player must commit money to the machine to be privy to the next preview.” That “play pattern” is an “illegal gaming scheme designed to circumvent gambling prohibitions,” Cooper wrote.

Wolf too noted that players have to put money in to “preview” an outcome, asking at one point, “are we required to throw away our common sense?”

Rep. Scott Plakon, a Longwood Republican, filed legislation this past Session to outlaw the games; that bill passed the House and died in the Senate.

“Our entire case rises and falls on what the player knows,” DeMaggio told Wolf. “Chance is considered from the player’s point of view; what the machine ‘knows’ doesn’t matter.”

Daniel McGinn, an attorney for DBPR, countered that the machines have one job: To pay out or not. “A slot machine is a slot machine no matter the bells or whistles,” he told the court. His bosses, DBPR general counsel Jason Maine and Secretary Jonathan Zachem, attended the hearing.

Joseph Lewis Jr. and Stephanie W. Ray are the other two judges on the panel. As usual, they did not indicate when they would rule.

Gator Coin II’s Kathey Bright Fanning, daughter of founder Bud Bright, also attended Tuesday’s argument. She told reporters the number of pre-reveal machines in use continues to decrease as state regulators tell bar owners the games “may be illegal.”

When asked how profitable the machines are, she said, “It varies. Sometimes, it’s not very good for us. It really depends on the location.”

Native American farmer suing state over marijuana licenses

A Destin lawyer has sued the Department of Health, saying a medical marijuana license preference for black farmers should include “Native American farmers and ranchers.”

Donivon Craig Tingle filed suit in Okaloosa County Circuit Civil court last month.

The suit was disclosed in a departmental “legal updates” email on Friday — the same day officials said they also will begin the process of issuing four more provider licenses now that the number of “qualified, active patients” is over 100,000.

Tingle’s suit brings the number of challenges in the state over medicinal cannabis to at least 11, according to the department, which says having to defend the various legal and administrative actions has had a “significant impact on (its) ability to implement” state law governing medicinal cannabis.

Tingle‘s not just an attorney; he says he too is a Native American farmer and was a plaintiff in another lawsuit that charged the federal government with discrimination in the U.S. Department of Agriculture’s Farm Loan Program. That resulted in a $760 million settlement, of which Tingle says he received $50,000 — and also challenged in court.

What he’s now challenging is the state’s creation of a “Pigford class” license for providers, or “medical marijuana treatment centers” (MMTCs). The license is reserved for a black farmer who was part of settled lawsuits, known as “Pigford” cases, about discrimination against black farmers by the federal government.

Such a license “effectively closes off an opportunity to an entire race and classification of citizens of a racially-oppressed group while benefitting another classification of citizens of a racially-oppressed group. This is wrong,” Tingle said in his complaint.

“There is no rational basis for granting an opportunity for black farmers to obtain a medical marijuana license while denying to Native American farmers the same opportunity.”

A request for comment is pending with Tingle. A spokesman for the Health Department, which regulates the drug through its Office of Medical Marijuana Use, said the department “is reviewing the complaint.”

Marijuana advocates have long pressed the department to release more licenses to make it easier for patients to get medicinal cannabis, and at lower prices. Thirteen providers are currently licensed in Florida with 43 retail locations, records show; three of those licensed are for growing only.

Another preferential license class is tailored for applicants that own underused or shuttered citrus factories. Those licenses won’t be issued anytime soon because they too are the subject of “ongoing litigation,” the department said last week.

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Background for this post from The News Service of Florida, republished with permission, and by web editor Danny McAuliffe.

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State may soon get more medical marijuana providers

With the number of “qualified, active patients” surpassing 100,000, the Department of Health on Friday said it would finally start the process of issuing additional medical marijuana provider licenses.

The four new “medical marijuana treatment center” (MMTC) licenses, however, will be issued “through a new rule,” the department added. That could mean a delay as the agency goes through rulemaking – and possible legal challenges. The proposed rule is here.

Marijuana advocates have long pressed the department to release more licenses to make it easier for patients to get medicinal cannabis, and at lower prices. Thirteen providers are currently licensed in Florida with 43 retail locations, records show; three of those licensed are for growing only.

The department regulates the drug through its Office of Medical Marijuana Use.

“The new licenses are being issued because state law allows four more treatment centers once Florida reaches 100,000 qualified, active patients,” it said in a statement. “Florida currently has a total of 135,701 patients in the registry and 101,590 qualified, active patients.”

That number had previously caused confusion as the state had exceeded 100,000 overall almost four months ago — coincidentally on April 20, or 4/20 — in its medical marijuana use registry. But that included more than “active” patients, officials said.

Another 100,000-plus tally, reached last month, covered “all applications approved over time,” spokesman Devin Galleta explained at the time, including “renewals and nonactive patients.”

“So that doesn’t necessarily reflect the true number of active and qualified patients in the registry,” he said.

The new rule also will address a “Pigford class” license, reserved for a black farmer who was part of settled lawsuits, known as “Pigford” cases, about discrimination against black farmers by the federal government. Lawmakers did away with a previous requirement that black-farmer applicants be members of the Black Farmers and Agriculturalists-Florida Chapter.

“Due to ongoing litigation,” the department said, it wouldn’t be issuing two other licenses allowed under law. They’re for applicants that claim a preference in getting a license because they own underused or shuttered citrus factories.

For instance, Louis Del Favero Orchids— a Tampa orchid nursery — has sought to use that provision and now is challenging the department. The citrus preference was part of legislation that implemented the 2016 constitutional amendment allowing medical marijuana in the state.

And the agency said it settled other litigation with a provider known as Nature’s Way and awarded it a license.

An administrative law judge had recommended that the state grant a license to the South Florida nursery, accusing Health officials of a “colossal blunder” that created a “dumpster fire.”

“It’s an exciting development,” said Jeff Sharkey, founder of the Medical Marijuana Business Association of Florida. “Once those (new licenses) are issued and they get up and running, patients will have increased access, competition and quality.”

As to possible delays of the rulemaking process and from protests that could be filed over it, he added his members “have already been living with lengthy rulemaking … hopefully, (the department will) expedite this new opportunity.”

Otherwise, with a lack of new licenses, businesses seeking to get into the medicinal cannabis market in Florida will likely take to buying licenses from existing providers.

MedMen Enterprises Inc. of Los Angeles, the country’s biggest medical marijuana provider, recently said it had agreed to pay $53 million for a license from Central Florida’s Treadwell Nursery.

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Background provided by The News Service of Florida, republished with permission.

Greyhound racing-ban group releases still more endorsements

The Protect Dogs-Yes on 13 campaign on Friday announced another round of endorsements.

They include current and former lawmakers, greyhound groups, editorial boards, animal welfare organizations, and a local animal shelter, the campaign said in a release.

The group is promoting passage of Amendment 13, put on the November ballot by the Constitution Revision Commission (CRC).

The proposal, which needs at least 60 percent approval to be added to the state constitution, aims at ending commercial dog racing in the state. In Florida, live dog racing is still conducted at 11 tracks.

“Progressives and conservatives don’t agree on much these days, which is why the growing bipartisan support behind the #YesOn13 movement to end inhumane greyhound racing is so incredible,” said state Rep. Carlos Guillermo Smith, an Orlando Democrat, in a statement.

“After decades of Tallahassee inaction, Florida voters will finally have their chance to end (dog racing) by voting YES on Amendment 13 this November. I’m proud to join this bipartisan effort to free the greyhounds!”

According to the campaign, Friday’s endorsements include:

— Democratic House members Joe Abruzzo, Jared Moskowitz, and Carlos Guillermo Smith, and former state Reps. Mike Hill and Marlene O’Toole, both Republicans.

— Greyhound Adoptions of Florida, Friends of Greyhounds, Greyhound Rescue and Adoptions of Tampa Bay, Elite Greyhound Adoptions, and National Greyhound Adoption Program.

— The editorial boards of the South Florida Sun-Sentinel, Naples Daily News, and Fort Myers News-Press, as well as E–The Environmental Magazine, The New Barker Dog Magazine, and Animal Wellness Magazine.

— Animal Welfare Action, Epic Outreach, Silverback Peace Group, and the American Society for the Prevention of Cruelty to Animals (ASPCA).

— Englewood Animal Rescue.

Marion Hammer files million-dollar lawsuit against alleged harassers

Veteran Florida-based National Rifle Association lobbyist Marion Hammer is seeking $1 million in damages, saying she was harassed and threatened by four men from across the country.

Hammer filed a lawsuit, including a motion for preliminary injunction, in federal court in Tallahassee on Friday. The case was first reported by the Tallahassee Democrat.

She described herself as “a 79-year-old grandmother and nationally renowned civil rights advocate who has spent the better part of her life protecting the Second Amendment to the U.S. Constitution.”

Hammer is the “victim of cyberstalking, harassment, intentional infliction of emotional distress, and intrusion upon seclusion under Florida statutory and common law,” her complaint says.

Her verified complaint says her troubles began after “the tragic shooting that occurred at Marjory Stoneman Douglas High School and continuing after the national debate over gun control took center stage.” A Feb. 14 mass shooting at the Parkland, Broward County high school left 14 students and three staff members dead.

She lobbied against the “Marjory Stoneman Douglas High School Public Safety Act” eventually passed by lawmakers and signed by Gov. Rick Scott, billed as a “comprehensive approach to addressing issues (of) firearm and school safety, and community mental health resources.”

Hammer soon became “the target of a coordinated attack intended to humiliate, harass, and cause substantial emotional distress,” the complaint says.

“For example, Hammer received the same postcards from various individuals throughout the United States, often mailed from the same location,” it says. “In several instances, the content of the communications (including email and social media) Hammer received used the same specific terms and phrases, thus demonstrating direction and cooperation.”

The complaint includes a long list of vituperative messages she says she has received, most using epithets and foul language.

“Whenever she is in public she worries that the people who have been harassing her will confront her and that a confrontation could turn violent,” it adds. “… She adjusted her schedule and the places she eats with her family so that they are not predictable. Her entire family group does not go anywhere together any more.”

The named defendants “sought out Hammer’s e-mail address” and one sent her “graphic photos of gunshot victims, including an unidentified person in a hospital bed with gaping leg wounds, and a photo of President John F. Kennedy’s head after he was assassinated.”

Others consisted of “indirect and/or direct threats accompanied by humiliating and abusive personal attacks.”

Hammer said she’s not alone, mentioning Republican Attorney General Pam Bondi being recently “confronted and harassed by protestors” coming out of a theater in Tampa where she had watched a Mr. Rogers documentary, and state Sen. Dana Young, a Tampa Republican, being yelled at that she had “blood on her hands” and called a “killer” and “murderer.”

She seeks an court order forbidding further communication to her from the defendants, calling it “beyond all bounds of decency” and “odious and utterly intolerable in a civilized community.”

“Harassment is not speech: It is wrongful conduct that may take the form of speech,” the complaint says. “Consequently, it can be enjoined without running afoul of the First Amendment.”

She’s represented by attorney Shane B. Vogt of Tampa.

Updated at 6:15 p.m. — The News Service of Florida reports a similar second lawsuit was filed later in the day by Hammer in Leon County Circuit Civil court against Brian Fitzgerald, identified as a 66-year-old resident of Miami-Dade County.

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New committee forms to fight gambling-control amendment

A new political committee called “Vote NO on 3” has registered to oppose a proposed state constitutional amendment requiring voter approval of new gambling.

A Division of Elections listing accessed Friday show the political committee (PC) is chaired by South Florida’s Isadore “Izzy” Havenick, whose family operates Magic City Casino in Miami and Naples-Fort Myers Greyhound Racing & Poker in Bonita Springs.

The Havenicks also recently gained approval from state gambling regulators to open a new casino just north of Miami’s downtown in the Edgewater neighborhood.

The PC’s formation paperwork and any initial campaign finance information has not yet been made available online.

“Look, we have a very big target on our back,” Havenick said in a phone interview. “The pari-mutuels and the ancillary businesses that work with us provide a lot of jobs and tax revenue to the state and to local communities. We have to defend ourselves.”

The new committee’s treasurer is Mark Herron, a Tallahassee election-law attorney who works with Democrats.

Its “registered agent” is Christian Ulvert of Miami, a Democratic political consultant and senior adviser to Democratic candidate for governor Philip Levine‘s campaign.

Amendment 3, backed by Disney and the Seminole Tribe of Florida, aims at limiting gambling’s expansion in the state.

The amendment would “ensure that Florida voters shall have the exclusive right to decide whether to authorize casino gambling,” the ballot summary says.

John Sowinski, chair of Voters In Charge – the PC backing the amendment – told Florida Politics in an email that “it appears that some people would rather buy gambling permits with political contributions and lobbyists than allow voters to have a say.”

The amendment “simply gives power to Florida voters, and takes it away from Tallahassee politicians and lobbyists,” Sowinski said. “It’s no surprise that those who spend millions bankrolling politicians would oppose Amendment 3.”

Izzy Havenick has personally made $9,000 in contributions dating back to 2002, campaign finance records, going to both Democratic and Republican candidates in Florida.

But the Havenicks’ company, West Flagler Associates, has given a minimum of nearly $2.5 million to state candidates and committees, according to records going back to the 1990s.

Division of Elections records also show that Disney and the Seminole Tribe, who both have a stake in limiting the expansion of gambling in the state, each chipped in $5 million in April to the Voters In Charge PC. It’s raised a total of almost $17.5 million since late 2015.

League of Women Voters sues over education amendment

Calling it “affirmatively misleading,” the League of Women Voters of Florida is seeking to have a proposed constitutional amendment on education tossed off the ballot.

At issue is a section that would let organizers of charter schools avoid having to get an OK from local school boards to open.

The League itself, President Patricia M. Brigham, and second Vice President Shawn Bartelt filed suit in Leon County Circuit Civil court on Thursday against Secretary of State Ken Detzner, the state’s chief elections officer.

Amendment 8 was approved earlier this year by the Constitution Revision Commission (CRC) and placed on the November statewide ballot. Amendments need at least 60 percent approval to be added to the state constitution.

The suit says its “proposed ballot title and summary fail to inform voters of the chief purpose of the revision, and are affirmatively misleading as to (its) true purpose and effect.”

The League mentioned in its complaint that the amendment’s sponsor, CRC member and Collier County School Board member Erika Donalds, said she “intentionally drafted (the proposal) … to ‘allow the Legislature flexibility to create alternate processes to authorize the establishment of public schools within our state.’ ”

The amendment’s language “would, therefore, enable the Legislature to devise a method of creating and operating new public schools with no input from or participation by the local school boards, school districts within whose borders the schools are located, or local electors,” the suit said.

“Charter schools are nonprofit organizations that have a contract, or ‘charter,’ to provide the same educational services to students as district public schools,” according to the Florida Consortium of Public Charter Schools website.

In a separate statement, Brigham said: “The Amendment 8 language is blatantly, and unconstitutionally, misleading.”

Voters “will not recognize that the real purpose of the amendment is to allow unaccountable political appointees to control where and when charter schools can be established in their county,” she said.

“We know that Floridians overwhelmingly support the constitutional requirement to make adequate provision for the education of all children that is ‘uniform, efficient, safe, secure and high quality.’ We are asking the court to ensure that voters aren’t tricked into eliminating those protections.”

The case has not yet been docketed, so it wasn’t known Thursday to which circuit judge it had been assigned.

The League’s copy of the complaint is below.

Lawmakers want judge tossed off environmental funding suit

Saying he violated their constitutional rights “in multiple ways, and over repeated objections,” House Speaker Richard Corcoran and Senate President Joe Negron asked a Tallahassee judge to remove himself from future proceedings in an environmental funding case.

The legislative leaders filed their disqualification request with Circuit Judge Charles Dodson earlier this week.

On June 28, Dodson had granted a “final (summary) judgment for (the) plaintiffs” in a lawsuit over how lawmakers fund environmental conservation. Summary judgments allow parties to win a case without a trial.

A notice of appeal has not yet been filed, according to court dockets. But attorneys sometimes move for disqualification to avoid having the same judge if a suit on appeal gets kicked back down to the lower-court judge for further action.

The case, first filed in 2015, was over the Water and Land Legacy Amendment, also known as Amendment 1. The 2014 constitutional change, mandating state spending for land and water conservation, garnered a landslide of nearly 75 percent, or more than 4.2 million “yes” votes.

Amendment 1 requires state officials to set aside 33 percent of the money from the real estate “documentary stamp” tax to protect Florida’s environmentally sensitive areas for 20 years.

Advocates — including the Florida Wildlife Federation and Sierra Club — sued, saying lawmakers wrongly appropriated money for, among other things, “salaries and ordinary expenses of state agencies” tasked with executing the amendment’s mandate.

Dodson agreed, declaring a laundry list of 2015 and 2016 appropriations unconstitutional.

“The clear intent was to create a trust fund to purchase new conservation lands and take care of them,” he wrote. “The conservation lands the state already owned were to be taken care of, certainly, but from non-trust money.”

But Andy Bardos, the GrayRobinson lawyer representing Corcoran and Negron, said in his filing the plaintiffs never asked for a final judgment, “but only for partial summary judgment as to nine of 114 appropriations challenged in (the) complaint—or eight percent of its case.”

That violated lawmakers’ right to due process, Bardos said, which has now “eliminated the Legislative Parties’ confidence in the fairness and impartiality of this proceeding.”

In response, David Guest – one of the plaintiffs’ lawyers – said “the alleged bias is based entirely on Judge Dodson’s rejection of their legal arguments, all of which were squarely presented at various points in the proceedings.

“That a judge finds a party’s legal argument unpersuasive cannot be the basis of a motion to recuse the judge – only the basis for an appeal,” he added.

This sets a very low bar for what counsel for the Legislature considers to be acceptable conduct. Expect more of this kind of play before this case is over.”

As of June 21, the Senate spent $229,172 in total “litigation expenses” defending the suit, Senate spokeswoman Katie Betta said. Similar information was not immediately available from the House.

A spokeswoman for Secretary of State Ken Detzner, also a defendant named in his official capacity, said his department “did not obtain outside counsel on this case.”

The full filing, with exhibits, is below:

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