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HomeMy WebLinkAboutSubmittal-District 4Clarification of Chapter 12 of the City Code, titled "Coin -Operated Machines and Establishments" Commissioner Francis Suarez September 15, 2011 Tab 1: Summary: Three Misconceptions about Video Gaming Machines Tab 2: E-mail dated September 2010 from Office of Commissioner Suarez Tab 3: Relevant Case Law and Florida Statutes Tab 4: City of Miami Ordinance Passed October 2010 Tab 5: Transcript from "Lucky 7" Presentation by Chief Exposito '4 r 9 1 j wd 1100 t submitted into the public record inconnection with itennsNA.2 on 09'15'11 Priscilla A.Thompson City Clerk Three (3) Misconceptions about Video Gaming Machines Florida law is ambiguous on the legality of video gaming machines. Florida law is clear. An amusement machine is illegal if: (i) it includes an element of chance and (ii) it rewards the player with anything of value, including credits for future games. Every appellate court to consider the legality of video slot machines has held that the machines are illegal. a. State v. Broward Vending (4111 DCA) i. Video slot machines are illegal because "[even though] skill will significantly improve the player's winning percentage, it does not eliminate the element of chance in the machine itself." b. State v. Cyphers (2'1 DCA) i. Video slot machines are illegal because "[even though] skill affected the outcome in all the machines...there was also an element of chance affecting the outcome." c. In re Forty -Seven Video Redemption Games (2nd DCA) i. Video slot machines are illegal because they contain "an inherent element of chance." d. State v. Paskind (3rd DCA) i. Relied on Broward Vending to uphold an arrest for the use, possession, or operation of video gaming machines. 2. City Commission "legalized" video gaming machines by passing a new ordinance in October 2010. As a preliminary matter, the City cannot legalize these machines because they are illegal under state law. Nevertheless, let's take a look at what the new ordinance accomplished. a. Old Ordinance i. No express prohibition on video slot machines ii. No requirement that City staff inspect or observe the machines before issuing stickers for them (i.e., Operator would request an unlimited number of stickers and receive the stickers in the mail) iii. Over 1,500 stickers issued for amusement machines from Oct. 2009 — May 2010 (City ran out of stickers) b. New Ordinance i. Expressly prohibits machines that "simulate[] a slot machine, casino card game, or any electronic casino game" if those machines reward the player with credits for future games ii. Requires City staff to inspect machines and personally affix stickers on the machines; stickers are designed to self-destruct upon removal iii. No stickers issued for amusement machines since Oct. 2010 Police Department opposed the ordinance adopted by the City Commission in October 2010. a. District 4 Office worked closely with Police Department in drafting amendments to strengthen the ordinance. b. District 4 Office confirmed several times with the Police Department that the department was supportive of the new ordinance. Submitted into the public record in connection with items NA.2 on 09-15-11 Priscilla A. Thompson City Clerk Submitted into the public record inconnection with items NA.2on 09'15'11 Priscilla A.Thompson City Clerk Amusement Machines - Case Law- Enterprise Vault Archived Item yugu 1 ol2 From Uorente Mike Date Friday, 17, 30102:47:00 PM To Mendez, Victoria Cc Suarez, Francis (Commissioner); Lago' Carlos Bcc L|orente,Mike Subject Amusement Machines - Case Law "est;amw Document 13 58 21.dmc(Z7KeHTML) 1.cjif(*nnHTML) Cwestlaw Document 13 58 54.doc (15 KB HTML) CWestlaw Document 13 57 11.doc(58 KB HTML) Vicky, Attached are the four (4)Florida cases interpreting Section 840.1Softhe Florida Statutes, which prohibits theuoeorposscssionofamuscmentmachincsthatindudean"c|ementufchance"thataUowtheu»erto becomeenddedtoreceive"anymoney,oredit,aUuwanceorthinOofva|ueoradditinna|chanceorri8ht to use such machine." |nall four cases, the court either holds orassumes that video slot machines that award credits towinning players are per seillegal. Nocourt ever considers whether the video slot machines were actually being used for gambling purposes. Brmw�xr6VenoYng '4�»0CA): court ruled that video slot machines that were "programmed to award credits tovvardaddidona|p|ayin@time"weneiUe8a|becausean"e|umentofchanceisinherentinthe8ame." The court did not consider whether the machines were actually being used for gambling purposes. � Pmsk/nd(�d DCA): court cited Broward Vending, without discussion, in reversing the trial court's dismissal of an information charging the defendants with "use, possession, or operation of a gambling device." �� {jp�/ers(� DCA): court rejected a constitutional challenge by defendants, who were charged with possession of coin -operated devices under Section 849.15, Florida Statutes. The defendants essentially conceded, and the court accepted, that the subject video slot machines — which awarded credits for lining upvariousiconsinwinninQcombinations—werefadaUyvio|ativeofSection849.ISbecause°Lherewas... onelement ofchance affecting the outcome." 0JVC Technology (2nd DCA): court held that probable cause existed for the seizure of forty-seven (47) video slot machines because the record testimony established that the machines contained an "inherent element of chance," The court, however, ruled that no probable cause existed for the seizure of twenty-two (22) video poker machines because "no testimony was presented regarding whether there was an inherent element of chance with respect to the . . . machines." Webelieve these four cases, read inconjunction with the statute, make bclear that "games of chance" that reward a player with any credit or additional chance to use the machine are perse illegal. The {omi issioner's amendment to -the amusement Machine Ordinance isintended toensure that the City does not issue permits tnthese illegal machines. Hdichae|L|mrmnte Chief -of -Staff Commissioner Francis Suarez 350UPan American Drive Miami, FL33133 Submitted into the public record |nconnection with |tmrnsNA.2 on 09'15-11 Priscilla A'Thompson City Clerk Submitted into the public record inconnection with items @A.2mnO9'25-12 Priscilla A.Thompson Westlam 696 So2d 851, 22 Fla. L. Weekly D964 (Cite as: 696 So.2d 851) District Court of Appeal of Florida, Fourth District. STATE of Florida, DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION, DIVISION OF ALCOHOLIC BEVERAGES AND TOBACCO, Appel I ant, v. BROWARD VENDING, INC., a corporation doing business as Gulfstream Vending, Appellee. No. 96-1405. April 16, 1997. Rehearing, Clarification, Certification of Question, and Rehearing En Banc Denied July 9, 1997. State appealed from order of the Seventeenth Judicial Circuit Court, Broward County, Leroy H. Moe, J., which enjoined State Departrnent of Business and Professional Regulation from seizing coin -operated slot machine games. The District Court of Appeal held that element of chance was significant factor inherent in game, so that machine violated statute and was subject to seizure, even though skill would improve player's chances of winning. Reversed. West Headnotes Gaming 188 €:60 188 Gaming 18811 Penalties and Forfeitures 188k60 k. Searches and Seizures. Most Cited Cases Element of chance was significant factor inherent in coin -operated slot machine game, and thus, machine violated statute and was subject to seizure, even though skill could improve player's winning percen- tage; even if levers on machine were not manipulated by player to improve score, machine was preset for player to win 55% of time, and while skill would significantly improve winning percentage, it did not eliminate element of chance in machine itself. West's F.S.A. § 849.15. *851 Robert A. Butterworth, Attorney General, Tal- Submitted into the public record in connection with items NA.2 on 09-15-11 Priscilla A. Thompson City Clerk Page 1 lahassee, and Charles M. Fahlbusch, Assistant Attor- ney General, Hollywood, for appellant. Kevin F. Jursinski of Kevin F. Jursinski, P.A., Fort Myers, for appellee. ON MOTION FOR REHEARING PER CURIAM. We withdraw our previously issued opinion and substitute the following in its place. The state appeals the order of the trial court enjoining the Departrnent of Business & Professional Regula- tion, Division of Alcoholic Beverages & Tobacco from seizing machines which the Department claimed were coin -operated gambling devices, possession of which is a violation of section 849.15, Florida Statutes (1995). Because the tria] court found that skill was a significant factor in operating and winning on the machines in question, it concluded that they did not violate the statute. We must disagree and reverse. Section 849.15 prohibits the leasing, renting or selling of certain slot machines or other devices, "pursuant to which the user thereof, as a result of any element of chance or other outcome unpredictable to him, may become entitled to receive any money, credit, allow- ance, or thing of value or additional chance or right to use such machine or device ...." § 849.15(2) (emphasis supplied). hi the instant case, the machines in question were orozrammed to award credits toward additional playing time to the player successful in manipulating the machine so as to win at the game, the record de- scription of which sounds very much like a typical slot machine requiring the player to match up bars, fruit, bells or cherries in a row in order to win more points. The state contends that the court erred in determining that the machines did not violate the statute because a significant degree of skill was required. Instead, it claims that the trial court had to find that there was no element of chance inherent in the machine itself in order to declare that the machines did not violate the statute. See Hernandez v. Graves, 148 Fla. 247, 4 So.2d 113 (1941). © 2010 Thomson Reuters. No Claim to Orig. US Gov. Works. Page 2 696 So.2d 851, 22 Fla. L. Weekly D964 (Cite as: 696 So.2d 851) *852 In Deeb v. Stoulamire, 53 So.2d 873 (Fla.! 951), the court considered the meaning of the phrase "any element of chance or of other outcome of such opera- tion unpredictable by him" in the case of a mechanical bowling machine. The trial judge had decided that the game was primarily one of skill, but he thought there was some element of mechanical chance which might be caused by rust on the pucks, a spot of moisture on the bowling surface or similar imperfections in the game. The supreme court determined that this was not the type of chance to which the statute referred and stated: In the last analysis, we must decide the nature of the result which is unpredictable by the player. Certainly the outcome of any game at all dependent upon the exercise of human skill is essentially unpredictable. If this were not so, match games like golf and trap shooting would really be dreary, monotonous affairs. It seems to us that inasmuch as the machine itself is on trial so to speak, it should not be condemned unless this element of unpredictability is inherent in it. True, the player when he "activates" the device by inserting his coin cannot predict what score he will make; but from the standpoint of the machine there is no occa- sion even to predict that there will be an accurate registration of his control of the pucks as the player slides them expertly or inexpertly toward the springs forming contact with the scoreboard. Such is a cer- tainty. It is our thought that the element of unpredictability is not supplied because a player may not be sure what score he can accomplish, but that it must be inherent in the machine.... We conclude that in the process from the insertion of a coin until the last puck has been slid down the alley, the score totaled has not depended on chance or other result unpredictable by the player, except such chance or unpredictablility as is traceable to his own skill, which we interpret the law not to mean, as distin- guished from the chance or unpredictability of the mechanism, which we construe the law to proscribe. Id. at 874-75. In the instant case, the owner of the machine admitted that chance is an element of the game. Indeed, if a player does not manipulate the levers to improve the score, the machine is preset for the player to win 55% of the time, although that percentage could be mod- ified by an adjustment of the machine. While skill will significantly improve the player's winning percentage, it does not eliminate the element of chance in the machine itself The machine is not like the bowling machine, which requires solely the skill of the player to slide the puck and knock down the pins, the ma- chine merely tabulating the score. Here, the game is set to play itself and to record a certain win/loss ratio. Ehus, the element of chance is inherent in the game. The rationale of Deeb requires a reversal of the order of the trial court. WARNER, KLEIN and SHAHOOD, JJ., concur. Fla.App. 4 Dist.,1997. State, Dept. of Business and Professional Regulation, Div. of Alcoholic Beverages and Tobacco v. Broward Vending, Inc. 696 So.2d 851, 22 Fla. L. Weekly D964 END OF DOCUMENT Submitted into the public record in connection with items NA.2 on 09-15-11 Priscilla A. Thompson City Clerk © 2010 Thomson Reuters. No Claim to Orig. US Gov. Works. Westlaw, 709 So.2d 197 709 So.2d 197, 23 Fla. L. Weekly D1129 (Cite as: 709 So.2d 197) District Court of Appeal of Florida, Third District. The STATE of Florida, Appellant, v. Stephen B. PASKIND, et al., Nick Milos, et al., Ap- pellees. Nos. 97-409, 97-395. May 6, 1998. Appeals from the Circuit Court for Dade County; Michael A. Genden, Judge, and Roberto M. Pineiro, Judge. Robert A. Butterworth, Attorney General, and Mark Rosenblatt, Assistant Attorney General, for appellant. Mark D, Seiden, Miami; Black, Srebnick & Komspan and Roy Black and Christine M. Ng, Miami, for ap- pellees. Before NESBITT, COPE and GREEN, JJ. PER CURIAM. For the reasons expressed t and on authority of Department of Business & Professional Regulation v. Broward Vending, Inc., 696 So.2d 851 (Fla. 4th DCA 1997), we reverse the trial court order which dismissed the amended information charging the various defendant's with use, possession, operation of a gambling device or gambling establishment • d reinstatement of the amended information and for further proceedings. Reversed and remanded. 709 So.2d 197, 23 Fla. L. Weekly D1129 END OF DOCUMENT Submitted into the public record in connection with items NA.2 on 09-15-11 Priscilla A. Thompson City Clerk Page 1 © 2010 Thomson Reuters. No Claim to Orig. US Gov. Works. West aw. 873 So.2d 471, 29 Fla. L. Weekly D1136 (Cite as: 873 So.2d 471) District Court of Appeal of Florida, Second District. STATE of Florida, Appellant, v. Mark CYPHERS and Donna McKinney, Appellees. No. 2D03-1272. May 12, 2004. Background: State appealed from decision of the Circuit Court, Sarasota County, Harry M. Rapkin, J., granting defendants' motions to dismiss. Holdine: The District Court of Appeal, Stringer, J., held that legislature's use of only the term "coin" in arcade amusement center exception for machines which operate by means of insertion of a coin reflected intent that only those machines that operated by use of coin fell within the exception to the prohibition against gambling, and since defendants' machines did not accept quarters and were operated by cash bills, de- fendants' conduct was not protected by the exception to statutory gambling prohibitions. Reversed and remanded. West Headnotes al Gaming 188 €='68(3) 188 Gaming 188111 Criminal Responsibility 18811I(A) Offenses 188k68 Games, Sports, and Devices Prohi- bited 188k68(3) k. Slot Machine, Most Cited Cases Legislature's use of only the term "coin" in arcade amusement center exception for machines which op- erate by means of insertion of a coin reflected intent that only those machines that operated by use of coin fell within the exception to the prohibition against gambling, and since defendants' machines did not accept quarters and were operated by cash bills, with some machines accepting up to a hundred dollar bill, defendants' conduct was not protected by the excep- Submitted into the public record in connection with items NA.2 on 09-15-11 Priscilla A. Thompson City Clerk Page 1 tion to statutory gambling prohibitions, and thus, defendants could not maintain a void for vagueness challenge to statute. West's F.S.A. 849.161(1)(a) 1. jJ Criminal Law 110 €13.1 110 Criminal Law 1101Nature and Elements of Crime 110k12 Statutory Provisions 110k13.1 k. Certainty and Definiteness. Most Cited Cases (Formerly 110k13.1(1)) To sustain a void for vagueness claim, criminal de- fendants must establish that the statute is so vague and lacking in ascertainable standards of guilt that, as applied to defendants, it failed to give a person of ordinary intelligence fair notice that his contemplated conduct was forbidden. al Criminal Law 110 €.,---13.1 110 Criminal Law 1101 Nature and Elements of Crime 110k12 Statutory Provisions 110k13.1 k. Certainty and Definiteness. Most Cited Cases (Formerly 110k13.1(1)) When a person has received fair warning from a criminal statute that certain conduct is prohibited, that person may not attack the vagueness of the statute simply because it does not give similar fair warning with respect to other conduct which might be within its broad and literal ambit. ifti Criminal Law 110113.1 110 Criminal Law 1101 Nature and Elements of Crime 1 10k12 Statutory Provisions 110k13.1 k. Certainty and Definiteness. Most Cited Cases (Formerly 110k13.1(1)) Defendant may not successfully challenge a statute as vague when the record shows that the defendant en- gaged in conduct clearly proscribed by the plain and ordinary meaning of the statute. © 2010 Thomson Reuters. No Claim to Orig. US Gov. Works. 873 So.2d 471, 29 Fla. L. Weekly D1136 (Cite as: 873 So.2d 471) .1.5] Statutes 361 (>209 361 Statutes 361VI Construction and Operation 361 Vi(A) General Rules of Construction 3611(204 Statute as a Whole, and Intrinsic Aids to Construction 361k209 k. Same or Different Lan- guage. Most Cited Cases The legislature's use of different terms in different sections of the same statute is strong evidence that different meanings were intended. .M Statutes 361 (€,)195 361 Statutes 361V1 Construction and Operation 361VI(A) General Rules of Construction 361k187 Meaning of Language 36Jk195 k. Express Mention and Im- plied Exclusion. Most Cited Cases When the legislature has used a tell"' in one section of the statute but omits it in another section of the same statute, court will not imply it where it has been ex- cluded. *471 Charles J. Crist, Jr., Attorney General, Talla- hassee, and Richard M. Fishkin, Assistant Attorney General, Tampa, for Appellant. *472 Henry E. Lee of Law Office of Henry Lee, Sa- rasota, for Appellee Mark Cyphers, Jackson McGill of Law Offices of R. Jackson McGill, Sarasota, for Appellee Donna McKinney. STRINGER, Judge. The State seeks joint review of two orders granting Mark Cyphers' and Donna McKinney's motions to dismiss on the grounds that the statutory scheme they were charged under is unconstitutionally vague. Cy- phers and McKinney (Defendants) were charged with keeping a gambling house, contrary to section 849.01, Florida Statutes (2003), and possession of coin -operated devices (slot machines), contrary to section 849.15, Florida Statutes (2003). Because sec- tions 849.01, 849.15, and 849.161, Florida Statutes (2003), are not impermissibly vague, we reverse the trial court's orders granting Defendants' motions to dismiss and remand for further proceedings. Submitted into the public record in connection with items NA.2 on 09-15-11 Priscilla A. Thompson City Clerk Page 2 Defendants operated an arcade amusement center with at least fifty amusement games, which Defendants believed to be permissible as part of the section 849 161 arcade arnusement center exception to chap- ter 849, Laws of Florida. The machines at issue in this case are operated by the player's inserting cash into the machine and depressing a button, whereby a series of rotating icons begin to spin. The player then depresses the button to stop the spinning icons, attempting to line up the icons in combinations to be awarded cre- dits. A certain number of credits may be exchanged for gift certificates redeemable at various specified businesses. Some businesses redeem the gift certifi- cates for merchandise and cash. Both the State and Defendants conceded, and the court found, that skill affected the outcome in all the machines, but there was also an element of chance affecting the outcome. LU Defendants challenged the informations, alleging that the statutory scheme under which they were charged is unconstitutionally vague. Specifically, Defendants argued that section 849.16 I (1)(a)(1)'s arcade amusement center exception for machines involving the "application ofskill" is vague when read in conjunction with section 849.15, which prohibits slot machines involving "any element of chance." Additionally, Defendants argued that section 849.161(1)(a)(1) is vague in its requirement that points or coupons awarded to players could only be exchanged for merchandise, excluding cash and al- coholic beverages. The trial court agreed with De- fendantsconstitutional vagueness challenges and dismissed the informations, finding that the language of sections 849.01, 849.15, and 849.161 does not provide adequate notice of the prohibited conduct, leading to arbitrary and selective enforcement of the law. f21(31[41 To sustain a void for vagueness clairn, De- fendants must have established below that the statute "is so vague and lacking in ascertainable standards of guilt that, as applied [to Defendants], it failed to give 'a person of ordinary intelligence fair notice that his contemplated conduct is forbidden.' "Palmer v. City of Euclid, 402 U.S. 544, 545, 91 S.Ct. 1563, 29 L.Ed.2d 98 (1971) (citations omitted); see also State v. Barnes, 686 So.2d 633, 637 (Fla. 2d DCA 1996). It is well settled that "[w]hen a person has received fair warning from a criminal statute that certain conduct is prohibited, that person may not attack the vagueness © 2010 Thomson Reuters. No Claim to Orig. US Gov. Works. 873 So.2d 471, 29 Fla. L. Weekly D1136 (Cite as: 873 So.2d 471) of the statute simply because it does not give 'similar fair warning with respect to other conduct which might be within its broad and literal ambit.' " Barnes, 686 So.2d at 636-37 (quoting Parker v. Levv, 417 U.S. 733, 756, 94 S.Ct. 2547, 41 L.Ed.2d 439 (1974)). Thus, a defendant may not successfully challenge *473 a statute as vague when the record shows that the defendant engaged in conduct clearly proscribed by the plain and ordinary meaning of the statute. Id. at 637; see also Slaie v. De La Llana, 693 So.2d 1075, 1077 (Fla. 2d DCA 1997). In this case, the record shows that Defendants' conduct is clearly not pro- tected under the section 849.161(1)(a)(1) exception to gambling prohibitions. Thus, Defendants cannot sus- tain a void for vagueness claim, and we do not reach Defendants' argument that section 849.161(1)(a)(1) is vague when read in conjunction with section 849.15. Section 849.15 prohibits possession of any slot ma-. chine, defined in section 849.16(1), Florida Statutes (2003), as [a]ny machine or device ... that is adapted for use in such a way that, as a result of the insertion of any piece of money, coin, or other object, such machine or device is caused to operate or may be operated and if the user, by reason of any element of chance or of any other outcome of such operation unpre- dictable by him or her, may: [r]eceive or become entitled to receive any ... thing of value ... or ... [s]ecure additional chances.... Pursuant to section 849.161(1)(a)(1), however, section 849.15 shall not apply to an arcade amusement center with amusement games or machines "which operate by means of the insertion of a coin and which by ap- plication of skill may entitle the person playing or operating the game or machine to receive points or coupons which may be exchanged for merchandise only, excluding cash and alcoholic beverages," not to exceed a value of seventy-five cents per game. Defendants do not argue that their conduct does not f.J1 within the gambling prohibitions of sectips 849.01 and 849,15. Rather, Defendants argue that they believed their conduct to be exempt from prosecution pursuant to the section 849.161,(1)(0(1) exception. We find, however, that Defendants' conduct is clearly not protected under the section 849 161(1)(a)(1) ex- ception because Defendants' machines were not coin operated, as required by the plain and ordinary Submitted into the public record in connection with items NA.2 on 09-15-11 Priscilla A. Thompson City Clerk meaning of the statute. Page 3 15116] The definition of slot machine includes a ma- chine that may be operated by the insertion of "any piece of money, coin, or other object." In contrast, section 849.161(1)(a)(1) refers specifically to ma- chines which operate by the insertion of "a coin." Furthermore, section 849.161(1)(a)(2), creating an exception pertaining to truck stops, refers to machines operated by the insertion of "a coin or other currency." The legislature's use of different terms in different sections of the same statute is "strong evidence that different meanings were intended." Clarke v. Schim- mel, 774 So.2d 7, 9 (Fla. 2d DCA 2000). Thus, "[w]hen the legislature has used a term ... in one sec- tion of the statute but omits it in another section of the same statute, we will not imply it where it has been excluded." Leisure Resorts, Inc. v. Frank 1 Rooney, Inc., 654 So.2d 911, 914 (F1a.1995). In addressing this issue, the Florida Attorney General's Office concluded that "the Legislature's use of only the term 'coin' in section 849.161(1)(a)1., reflects an intent that only those machines that operate by use of a coin fall within the exception to the prohibition against slot ma- chines." Op. Att'y Gen. F1a.2004-12 (2004). In this case, the record is clear that Defendants' ma- chines were not coin operated. Rather, Cyphers testi- fied that the machines did not accept quarters and were operated by cash bills, with some machines accepting up to a hundred dollar bill. We find, based on the plain and ordinary meaning of the statute, that Defendants' *474 conduct is not protected by the section 849.161(I)(a)(1) exception to the gambling prohibi- tions of sections 849.01 and 849.15. Accordingly, Defendantsvagueness challenge to sections 849.01, 849.1.5, and 849.161 must fail. We reverse the trial court's orders dismissing Defendants' informations and remand for further proceedings. Reversed and remanded. COVINGTON and V1LLANTI, JJ., Concur. Fla.App. 2 Dist.,2004. State v. Cyphers 873 So.2d 471, 29 Fla. L. Weekly D1136 END OF DOCUMENT 2010 Thomson Reuters. No Claim to Orig. US Gov. Works. Westaw, 799 So.2d 221 799 So.2d 221, 26 Fla. L. Weekly D1306 (Cite as: 799 So.2d 221) HDistrict Court of Appeal of Florida, Second District. In re forfeiture of FORTY-SEVEN VIDEO RE- DEMPTION GAMES (Cherrymaster video slot machines), labeled with letters A to Z and numbering # 2 through # 19, # 30, and # 32, and twenty-two Hypershow video poker machines, labeled with the numbering # 1 to # 22 and an unknown amount of U.S. Currency exceeding $58,885, NVC Technology, Inc., Joseph Alcantra, Airport for Hire, Inc., d/b/a Naples Bingo, John Kaplan, and Robert Nebb, d/b/a Liberty Amusements, Appellants, v. Don Hunter, Sheriff of Collier County, Florida, Ap- pellee. No. 2D00-5047. May 23, 2001. Rehearing Denied July 16, 2001. The Circuit Court, Collier County, Hugh D. Hayes, J., issued nonfinal order find probable cause for sheriffs seizure of defendants' video redemption and video poker machines. Defendants appealed. The District Court of Appeal, Patterson, C.J., held that: (1) seizure only required a showing of a sufficient probability to warrant a reasonable belief that the property was used in violation of the Florida Contraband Forfeiture Act; (2) there was probable cause to seize video redemption machines as illegal slot machines, but (3) absent any evidence regarding whether there was an inherent element of chance with respect to video poker ma- chines, such machines were not subject to seizure. Affirmed in part and reversed and remanded in part. West Headnotes JjJ Searches and Seizures €83 349k83 Most Cited Cases Probable cause standard, and not clear and convincing standard necessary to prove a prima facie case of forfeiture, applied to seizure of defendants' property, and thus, seizure only required a showing of a suffi- Submitted into the public record in connection with items NA.2 on 09-15-11 Priscilla A. Thompson City Clerk Page 1 cient probability to warrant a reasonable belief that the property was used in violation of the Florida Contra- band Forfeiture Act. West's F.S.A. 932.701 et seq. 11 Gaming €='60 188k60 Most Cited Cases Testimony provided a sufficient probability to warrant a reasonable belief that there was an element of chance inherent in video redemption machines, and thus, there was probable cause to seize such machines as illegal slot machines used in violation of the Florida Contraband Forfeiture Act, even though owner testi- fied that such machines operated according to a skill level; same owner admitted that odds were 26 to 1 that a player would win with no application of skill, and state's expert testified that the machine had an inherent element of chance. West's F.S.A. 849.16, 932.701 et seq. al Gaming c1D='60 188k60 Most Cited Cases Absent any evidence regarding whether there was an inherent element of chance with respect to video poker machines, such machines were not subject to seizure as illegal slot machines. West's F.S.A. 849.16. *221 Michael H. Wolf of Michael H. Wolf, P.A., Plantation, for Appellants. William L. Rogers of William L. Rogers, P.A., Naples, for Appellee. *222 PA I I ERSON, Chief Judge. The appellants challenge a nonfinal order finding probable cause for the sheriffs seizure of the appel- lants' video redemption and video poker ma- chines. See Fla. R.App. P. 9.130(a)(3)(C)(ii) (per- mitting review of nonfinal orders that determine "the right to immediate possession of property"). We affirm the order with respect to the video redemption machines but reverse the order with respect to the video poker machines. Di At issue is whether the machines operated "by reason of any element of chance" so as to fall within the definition of a slot machine in section 849.16, Florida Statutes (2000). This case does not involve © 2010 Thomson Reuters. No Claim to Orig. US Gov. Works. 799 So.2d 221 799 So.2d 221, 26 Fla. L. Weekly D1306 (Cite as: 799 So.2d 221) the clear and convincing evidence standard set forth in Department of Law Enforcement v. Real Property, 588 So.2d 957, 967 (F1a.1991), which is necessary to prove a prima facie case in a forfeiture proceed- ing. Rather, the probable cause standard applies to this seizure of property and only requires a showing of a "sufficient probability to warrant a reasonable be- lief " that the property was used in violation of the Florida Contraband Forfeiture Act. In re forfeiture of $171,900 in U.S. Currency, 711 So.2d 1269, 1274 n. 8 (Fla. 3d DCA 1998) (emphasis in original). Based on the standard required for a probable cause finding, we affirm the trial court's order finding probable cause to seize the forty-seven Florida Skill video redemption machines. 121131 With respect to the orida Ski video re- demption machines, the State's expert witness, Detec- tive Beery, testified that the machine "has an inherent element of chanc%," On cross-examination, one of the appellants, Robert Nebb, testified that the video redemption machines operate according to a skill level. However, Nebb admitted, "There's a chance you would win, just in proportion to the natural odds of how many icons there are. If it has to stop in one of 26 places, the odds are 26 to one if you're hitting it with no application of skill." No tes,tioony was pre - regarding whether there was an inherent ele- ment of chance with respect to the twenty-two rsho video poker machines. In Department of Business & Professional Regula- tion, Division of Alcoholic BeveraRes & Tobacco v. Broward Vending, Inc., 696 So.2d 851 (Fla. 4th DCA 1997), which the appellants rely on, the court reversed an order enjoining the seizure of coin -operated gambling devices. The court stated, "While skill will significantly improve the player's winning percentage, it does not eliminate the ele- ment of chance in the machine itself." Id. at 852. The Broward Vending court recognized that the machine was "set to play itself and to record a certain win/loss ratio." Id. Contrary to the appellants' argument, however, nothing in Broward Vending would require that particular proof for a probable cause determination. Here, the testii.oriy provided a sufficient probability to warrant a reasonable belief that ele- ment of chance inherent in the 4 lorida Skill a - chines. We affirm the trial courts or.er as to the Submitted into the public record in connection with items NA.2 on 09-15-11 Priscilla A. Thompson City Clerk Page 2 finding of probable cause as to the forty-seven Florida Skill video redemption machines and reverse ble cause finding as to the twenty-two video poker machines. Affirmed in part, reversed in part, and remanded. GREEN and SILBERMAN, JJ., Concur. 799 So.2d 221, 26 Fla. L. Weekly D1306 END OF DOCUMENT © 2010 Thomson Reuters. No Claim to Orig. US Gov. Works. Advisory Legal Opinion - Ciambling, arcade amusement centers ?age 1 ot 4 skit) to content OFFICE OF THE AT "0 NEY G Enter search here HOME AG Pam Bondi Office Information Programs and Units Employment Open Government Crime and Fraud Consumer Protection Citizen Safety Victims' Services AG Opinions Florida Constitution US Constitution Keep up with our latest news and consumer information: Newsletter RSS feed Twitter Flonda Toll -free Fraud Hotline: 1-866-966-7226 • M • o cr ▪ 3 t71‘ Z 1?Z n CL 3' CD w o o = 3 64* .4c 0 m n 3 Ln ET 13 c c cr xr 0 xv Contact Us ENE tvi FLORIDA PAM BONDI Advisory Legal Opinion - AGO 2004-12 Number: AGO 2004-12 Date: March 24, 2004 Subject: Gambling, arcade amusement centers Mr. Gordon B. Linn Pompano Beach City Attorney Post Office Box 2083 Pompano Beach, Florida 33061 Today is September 15, 2011 g Print Version RE: GAMBLING -SLOT MACHINES -ARCADES -interpretation of statutory exemption for arcade amusement centers. ss. 849.01, 849.15, 849.16 and 849.161, Fla. Stat. Dear Mr. Linn: On behalf of the Pompano Beach City Commission, you ask substantially the following questions: 1. Do adult arcades, adult amusement centers, or other similar facilities which maintain, operate or utilize amusement games or machines which may operate by means of the insertion of a coin, but also may operate by means of insertion of paper currency of various denominations, violate sections 849.01 and 849.15, Florida Statutes, since section 849.161(1)(a)1., Florida Statutes, refers only to such machines which operate by insertion of a coin? 2. Do adult arcades, adult amusement centers, or other similar facilities having amusement games or machines, act in violation of the requirements of section 849.161(1)(a)1., Florida Statutes, by awarding points or credits exchanged at the arcade for gift certificates which may be exchanged off premises at other businesses for merchandise that includes alcoholic beverages, or cash which is provided for the purchase of some item of nominal value, and thus violate sections 849.01 and 849.15, Florida Statutes? Question One Section 849.01, Florida Statutes, prohibits a person from keeping a gambling house.[1] Pursuant to section 849.15, Florida Statutes, it is unlawful to possess or permit the operation of any slot machine or device.[2] Section 849.16(1), Florida Statutes, defines those machines which qualify as a slot machine or device as "one that is adapted for use in such a way that, as a result of the insertion of any piece of money, coin, or other object, such machine or device is caused to operate or may be operated and if the user, by reason of any element of chance or of any other outcome of such operation unpredictable by him or her, may: (a) Receive or become entitled to receive any piece of money, credit, allowance, or thing of value, or any check, slug, token, or memorandum, whether of value or otherwise, which may be exchanged for any money, credit, allowance, or thing of value or which may be given in trade; or (b) Secure additional chances or rights to use such machine, apparatus, or device, even though it may, in addition to any element of chance or unpredictable outcome of such operation, also sell, deliver, or present some merchandise, indication of weight, entertainment, or other thing of value." Thus, if the receiptof a prize is dependant on any element of chance, the machine, would fall within the above definition of a slot machineproscribed by aectioni. 849.15, Florida. Statutes. Section 849.161, Florida Statutes, creates a limited exception from the http://myfloridalegal.com/ago.nsf/Opinions/C404BAA0BD5CCFFD85256E6200555374 9/15/2011 Advisory Legal Opinion - Gambling, arcade amusement centers rage 2 OT 4 Enter search [Go] Enter email address I Submit -co M mC 3 0 Cr 3 o 5. ni 0 0 z m 0 4, ro Lri < c cr = n prohibitions of Chapter 849, Florida Statutes, for an arcade amusement center having amusement games or machines that operate by means of the insertion of a coin. "Arcade amusement center" is defined to mean "a place of business having at least 50 coin -operated amusement games or machines on premises which are operated for the entertainment of the general public and tourists as a bona fide amusement facility."[3] Section 849.161(1), Florida Statutes, provides: "(a)1. Nothing contained in this chapter shall be taken or construed as applicable to an arcade amusement center having amusement games or machines which operate by means of the insertion of a coin and which by application of skill may entitle the person playing or operating the game or machine to receive points or coupons which may be exchanged for merchandise only, excluding cash and alcoholic beverages, provided the cost value of the merchandise or prize awarded in exchange for such points or coupons does not exceed 75 cents on any game played. * * * (b) Nothing in this subsection shall be taken or construed as applicable to a coin -operated game or device designed and manufactured only for bona fide amusement purposes which game or device may by application of skill entitle the player to replay the game or device at no additional cost, if the game or device: can accumulate and react to no more than 15 free replays; can be discharged of accumulated free replays only by reactivating the game or device for one additional play for such accumulated free replay; can make no permanent record, directly or indirectly, of free replays; and is not classified by the United States as a gambling device in 24 U.S.C. s. 1171 . . . unless excluded from applicability of the chapter under s. 1178. This subsection shall not be construed to authorize video poker games, or any other game or machine that may be construed as a gambling device under Florida law." (e.s.) The Legislature's intent may be discerned by its election to use the same or different words within a statute; legislative use of different terms in different portions of the same statute is strong evidence that different meanings were intended.[4] Whereas the definition of slot machine includes a machine that is adapted for use in such a way that as a result of the insertion of any piece of money, coin or other object, it may be operated, the exception afforded by section 849.161(1)(a)1., Florida Statutes, refers only to machines which are operated by insertion of a coin. In contrast, section 849.161(1)(a)2., Florida Statutes, which creates a limited exception for truck stops, refers to machines which operate "by means of insertion of a coin or other currency[.)" Accordingly, it appears that the Legislature's use of only the term "coin" in section 849.161(1)(a)1., reflects an intent that only those machines that operate by use of a coin fall within the exception to the prohibition against slot machines. Those machines which operate by use of a coin or paper currency (which are permitted under section 849.161[1][a]2., Florida Statutes, for truck stops) would not qualify, in my opinion, for the exception afforded for arcade amusement centers. Therefore, I am of the opinion that adult arcades, adult amusement centers, or other similar facilities which maintain, operate or utilize amusement games or machines for which the receipt of a prize is dependent on any element of chance and which may operate by means of the insertion of a coin, but also may operate by means of insertion of paper currency of various denominations, violate sections 849.01 and 849.15, Florida Statutes, since section 849.161(1) (a)1., Florida Statutes, permits machines which operate by insertion of a coin only. Question Two As discussed in Question One, section 849.161(1)(a)1., Florida Statutes, contains a limited exception from the prohibitions of Chapter 849, Florida Statutes, for arcade amusement centers having games or machines which operate by means of the insertion of a coin and which by application of skill may entitle the person playing or operating the game "to receive points or coupons which may be exchanged for merchandise only, excluding cash and alcoholic http://myfloridalegal.corrilago.nsf/Opinions/C404BAA0BD5CCFFD85256E6200555374 9/15/2011 Advisory Legal Opinion - Ciambling, arcade amusement centers rage .5 or 4 Pp- ,,.."' LA co A C fl• > 3 co i..., el Q. w 0 — 0 ,-1. ..< o ri 3 11' 5 rD tn z ls F -0 g„ • -1 0 A- 0 I-% .- . 0- = 7) beverages, provided the cost value of the merchandise or prize awarded in exchange for such points or coupons does not exceed 75 cents on any game played."[5] According to your letter, the points or coupons received by patrons in the instant inquiry contain no limitation to prevent their exchange for alcohol or cash. This would appear to be contrary to the requirements of the statute. Section 849.161(1)(a)1., Florida Statutes, clearly prohibits points or coupons awarded being exchanged for cash or alcoholic beverages. Those seeking to claim the exemption afforded by this section must ensure that all, not merely some, of the requirements for the exemption have been satisfied.[6] By failing to ensure that points or coupons awarded are exchanged for merchandise only and not for alcoholic beverages or cash, such arcade amusement centers appear to have failed to meet all the requirements for application of the exemption. Therefore, I am of the opinion that adult arcades, adult amusement centers, or other similar facilities having amusement games or machines, act in violation of the requirements of section 849.161(1)(a)1., Florida Statutes, by awarding points or credits exchanged at the arcade for gift certificates which may be exchanged off premises at other businesses for merchandise that includes alcoholic beverages, or cash which is provided for the purchase of some item of nominal value, and thus violate sections 849.01 and 849.15, Florida Statutes. Sincerely, Charlie Crist Attorney General CC/tjw [1] Section 849.01, Fla. Stat., provides: "Whoever by herself or himself, her or his servant, clerk or agent, or in any other manner has, keeps, exercises or maintains a gaming table or room, or gaming implements or apparatus, or house, booth, tent, shelter or other place for the purpose of gaming or gambling or in any place of which she or he may directly or indirectly have charge, control or management, either exclusively or with others, procures, suffers or permits any person to play for money or other valuable thing at any game whatever, whether heretofore prohibited or not, shall be guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084." [2] Section 849.15, Fla. Stat., provides that it is unlawful: "(1) To manufacture, own, store, keep, possess, sell, rent, lease, let on shares, lend or give away, transport, . . or permit the operation of, or for any person to permit to be placed, maintained, or used or kept in any room, space, or building owned, leased or occupied by the person or under the person's management or control, any slot machine or device or any part thereof; or (2) To make or to permit to be made with any person any agreement with reference to any slot machine or device, pursuant to which the user thereof, as a result of any element of chance or other outcome unpredictable to him or her, may become entitled to receive any money, credit, allowance, or thing of value or additional chance or right to use such machine or device, or to receive any check, slug, token or memorandum entitling the holder to receive any money, credit, allowance or thing of value." [3] See s. 849.161(2), Fla. Stat. [4] See State, Department of Revenue v. Central Dade Malpractice Trust Fund, 673 So. 2d 899 (Fla. 1st DCA 1996); Clarke v. Schimmel, 774 So. 2d 7, 8 (Fla. 2d DCA 2000). [5] And see s. 849.161(1)(b), Fla. Stat., which permits such games or devices to entitle a player by application of skill to replay the game or device at no additional cost subject to certain conditions. http://myfloridalegal.com/ago.nsf/Opinions/C404BAA0BD5CCFFD85256E6200555374 9/15/2011 Advisory Legal Opinion - Gambling, arcade amusement centers Page 4 ot 4 [6] Cf. Op. Att'y Gen. Fla. 88-41 (1988) (any new local chapter or branch of a national or regional organization may qualify for bingo operations only by meeting all the statutory requirements set forth in s. 849.093, Fla. Stat.). Submitted into the public record in connection with items NA.2 on 09-15-11 Priscilla A. Thompson City Clerk http://myfloridalegal.com/ago.nsf/Opinions/C404BAA0BD5CCFFD85256E6200555374 9/15/2011 The Florida Statutes - The Florida Senate The Florida Senate 2011 Florida Statutes TITLE XLVI CRIMES Submitted into the public record in connection with items NA.2 on 09-15-11 Priscilla A. Thompson City Clerk CHAPTER 849 GAMBLING rage 1 ot VIEW ENTIRE CHAPTER 849.15 Manufacture, sale, possession, etc., of coin -operated devices prohibited. (1) It is unlawful: (a) To manufacture, own, store, keep, possess, sell, rent, lease, let on shares, lend or give away, transport, or expose for sale or lease, or to offer to sell, rent, lease, let on shares, lend or give away, or permit the operation of, or for any person to permit to be placed, maintained, or used or kept in any room, space, or building owned, leased or occupied by the person or under the person's management or control, any slot machine or device or any part thereof; or (b) To make or to permit to be made with any person any agreement with reference to anyjamachine ar deziga, pursuant to which the user thereof, as a result of any lement of chance or other outcome unpredictable to him or her, may become entitled to receive any money, credit, allowance, or thing of value or additional chance or right to use such machine or device, or to receive any check, slug, token or memorandum entitling the holder to receive any money, credit, allowance or thing of value. (2) Pursuant to section 2 of that chapter of the Congress of the United States entitled "An act to prohibit transportation of gaming devices in interstate and foreign commerce," approved January 2, 1951, being ch. 1194, 64 Stat. 1134, and also designated as 15 U.S.C. ss. 1171-1177, the State of Florida, acting by and through the duly elected and qualified members of its Legislature, does hereby in this section, and in accordance with and in compliance with the provisions of section 2 of such chapter of Congress, declare and proclaim that any county of the State of Florida within which slot machine gaming is authorized pursuant to chapter 551 is exempt from the provisions of section 2 of that chapter of the Congress of the United States http://www.flsenate.gov/Laws/Statutes/2011/849.15 9/15/2011 The Florida Statutes - "fhe Florida Senate rage 2 01 2 entitled "An act to prohibit transportation of gaming devices in interstate and foreign commerce," designated as 15 U.S.C. ss. 1171-1177, approved January 2, 1951. All shipments of gaming devices, including slot machines, into any county of this state within which slot machine gaming is authorized pursuant to chapter 551 and the registering, recording, and labeling of which have been duly performed by the manufacturer or distributor thereof in accordance with sections 3 and 4 of that chapter of the Congress of the United States entitled "An act to prohibit transportation of gaming devices in interstate and foreign commerce," approved January 2, 1951, being ch. 1194, 64 Stat. 1134, and also designated as 15 U.S.C. ss. 1171-1177, shall be deemed legal shipments thereof into this state provided the destination of such shipments is an eligible facility as defined in s. 551.102 or the facility of a slot machine manufacturer or slot machine distributor as provided in s. 551.109(2)(a). History.—s. 1, ch. 18143, 1937; CGL 1940 Supp. 4151(405-a); s. 1367, ch. 97- 102; s. 2, ch. 2005-362; s. 156, ch. 2007-5; s. 11, ch. 2007-252. Disclaimer: The information on this system is unverified. The journals or printed bills of the respective charnbers should be consulted for official purposes. Copyright © 2000- 2011 State of Florida. Submitted into the public record in connection with items NA.2 on 09-15-11 Priscilla A. Thompson City Clerk http://www.flsenate.gov/Laws/Statutes/2011 /849.15 9/15/2011 The Florida Statutes - 'the Florida Senate 1-'age 1 ox 2 http://www.flsenate.gov/Laws/Statutes/2011/849.16 The Florida Senate 2011 Florida Statutes TITLE XLVI CRIMES CHAPTER 849 GAMBLING VIEW ENTIRE CHAPTER 849.16 Machines or devices which come within provisions of law defined. (1) Any machine or device is a slot machine or device within the provisions of this chapter if it is one that is adapted for use in such a way that, as a result of the insertion of any piece of money, coin, or other object, such machine or device is caused to operate or may be operated and if the user, by reason of Olement of charace_or of any other outcome of such operation unpredictable by him or her, may; (a) Receive or become entitled to receive any piece of money, credit, allowance, or thing of value, or any check, slug, token, or memorandum, whether of value or otherwise, which may be exchanged for any money, credit, allowance, or thing of value or which may be given in trade; or (b) Secure additional chances or rights to use such machine, apparatus, or device, even though it may, in addition to any element of chance or unpredictable outcome of such operation, also sell, deliver, or present some merchandise, indication of weight, entertainment, or other thing of value. (2) Nothing contained in this chapter shall be construed, interpreted, or applied to the possession of a reverse vending machine. As used in this section, a reverse vending machine is a machine into which empty beverage containers are deposited for recycling and which provides a payment of money, merchandise, vouchers, or other incentives. At a frequency less than upon the deposit of each beverage container, a reverse vending machine may pay out a random incentive bonus greater than that guaranteed payment in the form of money, merchandise, vouchers, or other incentives. The deposit of any empty beverage container into a reverse vending machine does not constitute consideration nor shall a reverse vending machine be deemed to be a slot machine within this section. submitted into the public record in connection with items NA.2 on 09-15-11 Priscilla A. Thompson City Clerk 9/15/2011 The Florida Statutes - The Florida Senate Yage 2 of 2 History.—s. 2, ch. 18143, 1937; CGL 1940 Supp. 4151(405-b); s. 1, ch. 67-203; s. 1, ch. 77-275; s. 2, ch. 84-247; s. 3, ch. 89-176; s. 1368, ch. 97-102. Disclaimer: The information on this system is unverified. The journals or printed bills of the respective chambers should be consulted for official purposes. Copyright © 2000- 2011 State of Florida. Submitted into the public record in connection with items NA.2 on 09-15-11 Priscilla A. Thompson City Clerk http://www.flsenate.goviLaws/Statutes/201 1 /849.16 9/15/2011 The Florida Statutes - I he Flonda Senate rage 1 0 I _5 The Florida Senate 2011 Florida Statutes * \IMQ e-Y\9.6 1(YGAe APA\u-vAe-vik C.DAW TITLE XLVI CRIMES CHAPTER 849 GAMBLING VIEW ENTIRE CHAPTER 849.161 Amusement games or machines; when chapter inapplicable.— (1)(a)1. Nothin contained in this chapter shall be taken or construed as applicable to an rcade amusement cente having amusement games or machines which operate by means of the insertion of a coin and which by application of skill may entitle the person playing or operating the game or machine to receive points or coupons which may be exchanged for merchandise only, excluding cash and alcoholic beverages, provided the cost value of the merchandise or prize awarded in exchange for such points or coupons does not exceed 75 cents on any game played. 12. Nothing contained in this chapter shall be taken or construed as applicable to any retail dealer who operates as a truck stop, as defined in 2chapter 336 and which operates a minimum of 6 functional diesel fuel pumps, having amusement games or machines which operate by means of the insertion of a coin or other currency and which by application of skill may entitle the person playing or operating the game or machine to receive points or coupons which may be exchanged for merchandise limited to noncash v, prizes, toys, novelties, and Florida Lottery products, excluding alcoholic CD c beverages, provided the cost value of the merchandise or prize awarded in (7, ^. 1) exchange for such points or coupons does not exceed 75 cents on any game n D- O • a played. This subparagraph applies only to games and machines which are n CD2. a n, operated for the entertainment of the general public and tourists as bona fide n 5- amusement games or machines. This subsection shall not apply, however, to 7-; any game or device defined as a gambling device in 3 2 4 U.S.C. s. 1171, which requires identification of each device by permanently affixing seriatim numbering and name, trade name, and date of manufacture under s. 1173, and registration with the United States Attorney General, unless excluded from applicability of the chapter under s. 1178. This subsection shall not be http://www.flsenate.gov/Laws/Statutes/2011/849.161 9/15/2011 The Honda Statutes - l'he Honda Senate rage 2 ot construed to authorize video poker games or any other game or machine that may be construed as a gambling device under Florida law. 1(b) Nothing in this subsection shall be taken or construed as applicable to a coin -operated game or device designed and manufactured only for bona fide amusement purposes which game or device may by application of skill entitle the player to replay the game or device at no additional cost, if the game or device: can accumulate and react to no more than 15 free replays; can be discharged of accumulated free replays only by reactivating the game or device for one additional play for such accumulated free replay; can make no permanent record, directly or indirectly, of free replays; and is not classified by the United States as a gambling device in 324 U.S.C. s. 1171, which requires identification of each device by permanently affixing seriatim numbering and name, trade name, and date of manufacture under s. 1173, and registration with the United States Attorney General, unless excluded from applicability of the chapter under s. 1178. This subsection shall not be construed to authorize video poker games, or any other game or machine that may be construed as a garnblin device under Florida law. (2) The ter "arcade amusement cente as used in this section means a place of business having at least 50 coin -operated amusement games or machines on premises which are operated for the entertainment of the general public and tourists as a bona fide amusement facility. History.—s. 3, ch. 84-247; s. 159, ch. 96-320; ss. 69, 79, ch. 96-323. (rj CD c I Note.— As amended by s. 159, ch. 96-320, and s. 79, ch. 96-323. For a 3 ° description of multiple provisions in the same session affecting a statutory n j'a 0 provision, see preface to the Florida Statutes, "Statutory Construction." 0 z z a st Subparagraph (1)(a)2. and paragraph (1)(b) were also amended by s. 69, ch. 96 14-1 =5. lorD -323, and that version reads: = 2. Nothing contained in this chapter shall be taken or construed as applicable to any retail dealer who operates as a truck stop, as defined in 2chapter 336, having amusement games or machines which operate by means of the insertion of a coin or other currency and which by application of skill ht-tp://www.flsenate.gov/Laws/Statutes/201 1/849.1 61 9/15/2011 The Florida Statutes - The Florida Senate Page 3 ot 3 may entitle the person playing or operating the game or machine to receive points or coupons which may be exchanged for merchandise limited to noncash prizes, toys, novelties, and Florida Lottery products, excluding alcoholic beverages, provided the cost value of the merchandise or prize awarded in exchange for such points or coupons does not exceed 75 cents on any game played. This subparagraph applies only to games and machines which are operated for the entertainment of the general public and tourists as bona fide amusement games or machines. This subsection shall not apply, however, to any game or device classified by the United States as requiring a federal gaming stamp under applicable provisions of the Internal Revenue Code. (b) Nothing in this subsection shall be taken or construed as applicable to a coin -operated game or device designed and manufactured only for bona fide amusement purposes which game or device may by application of skill entitle the player to replay the game or device at no additional cost, if the game or device: can accumulate and react to no more than 15 free replays; can be discharged of accumulated free replays only by reactivating the game or device for one additional play for such accumulated free replay; can make no permanent record, directly or indirectly, of free replays; and is not classified by the United States as requiring a federal gambling tax stamp under applicable provisions of the Internal Revenue Code. 'Note.— Material referencing truck stops in ch. 336 was in s. 336.021(1)(c)3.; it was deleted by s. 15, ch. 97-54. 'Note.— Title 24 of the United States Code relates to hospitals and asylums; chapter 24 of Title 15 of the United States Code relates to transportation of gambling devices. Disclaimer: The information on this system is unverified, The journals or printed bills of the respective chambers should be consulted for official purposes. Copyright 0 2000- 2011 State of Florida. Submitted into the public record in connection with items NA.2 on 09-15-11 Priscilla A. Thompson City Clerk http://www. flsenate. gov/L aws/Statutes/20 1 1 /849.161 9/15/2011 0 Submitted into the public record inconnection with items N&.2mn 09'15'11 Priscilla A.Thompson City Clerk City of Miami Legislation Ordinance ,f5- kite 0)Yzi tolatn c_cu-t� 1, of &4a, City Hall 3500 Pan American Drive Miami, FL 33133 www.miamigov.com File Number: 10-00739 Final Action Date: AN ORDINANCE OF THE MIAMI COMMISSION AMENDING CHAPTER 12 OF THE CODE OF THE CITY OF MIAMI, FLORIDA, AS AMENDED, CURRENTLY ENTITLED "COIN -OPERATED MACHINES AND ESTABLISHMENTS," BY AMENDING THE TITLE TO "AMUSEMENT GAMES OR MACHINES," CLARIFYING EXISTING LANGUAGE, ADDING DEFINITIONS, CREATING A LICENSING STRUCTURE AND REGULATORY SCHEME, PROVIDING FOR ENFORCEMENT AND PENALTIES, AND PROHIBITING UNAUTHORIZED AMUSEMENT GAMES OR MACHINES; AMENDING CHAPTER 31/ARTICLE II OF THE CITY CODE ENTITLED "LOCAL BUSINESS TAX AND MISCELLANEOUS BUSINESS REGULATIONS/LOCAL BUSINESS TAX (BTR)," MORE PARTICULARLY BY AMENDING SECTION 31-50, ENTITLED "SCHEDULE OF ESTABLISHED BTR'S," BY DELETING AN ESTABLISHED BTR; CONTAINING A SEVERABILITY CLAUSE AND PROVIDING FOR AN IMMEDIATE EFFECTIVE DATE. WHEREAS, gambling is prohibited within the City of Miami, except in certain pari-mutual locations as allowed pursuant to a referendum; and WHEREAS, Florida Statute Chapter 849 strictly prohibits any gambling or "game of chance" involving the exchange of money or other thing of value or under the pretext of a sale, gift, or delivery thereof, or for any right, share, or interest therein; and WHEREAS, Florida Statute Chapter 849 allows amusement games or machines which are considered"games of skill"; and eerfe V L C ._ 4-, +i 0 WHEREAS, it is in the best interest of health, safety, and .general welfare of the la. • j, a community, residents, and businesses of the City of Miami ("City") to regulate the operation of a, o ,-1 E amusement games or machines within the City in order to ensure the proper safeguards with U c s respect to the prohibition of gambling; and 2 c c c o o Q MI .0 (13 WHEREAS, the purpose and intent of this ordinance, as amended, is to narrow the w ▪ •c ci definition of amusement games or machines by making it conform with State law and ▪ -o ‘.1? a specifically, to eliminate any misconstruction of the definition of the types of machines permitted SI U as one which expands rights beyond the limitations imposed under the exception to gambling by ,n L cu State law; and WHEREAS, the purpose and intent of this ordinance, as amended, is to make changes to the regulations for adequate supervision of the operation of amusement games or machines within the City; and WHEREAS, a regulatory scheme is to be implemented to ensure that the operators of amusement games or machines comply with all state and local statutes and ordinances; and City of Miami Page 1 of 35 File Id: 10-00.739 (Version 6) Printed on 10/25/2010 Submitted into the public record |nconnection with items NA.2on 09-15-11 Priscilla A.Thompson City Clerk WHEREAS, a regulatory fee should be imposed to cover the onntu the Qtywill incur as a naou|t of enforcing the regulations herein adopted; and WHEREAS, the City currently allows an unlimited number of amusement games or machines to be operated by one (1) individual; and WHEREAS, the City wishes toencourage other business owners the opportunity to operate amusement games or machines, with the caveat that the amount of amusement games ormachines belimited per location; and WHEREAS, the City wishes to discourage monopolies by any operator of amusement games or machines by limiting the number of machines per location and requiring an exception process toacquire more machines otaparticular |ocetion� NOW. THEREFORE, BE IT ORDAINED BY THE COMMISSION OF THE CITY OF MiAM[FLOR|DA: Section 1. The recitals and findings contained inthe Preamble hzthis Ordinance are adopted and incorporated as if fully set forth in this Section. Section 2. Chapter 12 of the Code of the City of yNkani. Florida, as amended, in amended inthe following particukans:(1} "CHAPTER12 COIN {}PERATEDAMUSEMENTGAMES OR MACHINES AND ESTABLISHMENTS Sec. 12-1. Definitions. The following words, texnls, and phraneo, when used hnthis section, shall have the meanings ascribed to them in this section, except vvhena the context o|aady indicates o different meaning. Nothinq /n this section may be construed contrary to state law. Amusement Game or Machine means any machine, game, contrivance, or device that provides for the bona fide entertainment or amusement of the public and that, as a result of the payment of a fee, money, oompensaUon, or exchange of anything of value or insertion of a coin, a|ug, token, credit card, or paper ounanoK the mouhine, qamo, conthvonm*, or device is oat in motion, permitted to function or operate and thatby app|inubon of ykU|' may entitle the person playinq or operating the machine to receive points or coupons that may b-e exchanged for merchandise only, (limited to nonoash prizes, toys, or novo|Men, excluding mach, alcoholic bavorageu, beer, orwine).-provided the cost value of the merchandise or prize awarded in o»«haDqeforsuch point Vrcoupons does not exceed 75cents onany qameplayed. The definition of Amusement Game or Machine shall not be interpreted to include: u. Any game, mochine, contrivance or device whose content, theme, denkJn, or graphics dopict, exhibit, iUusbmte, desohbe, or relate to sexual conduct orspecified anatomical cItymMiami Page em35 File Id: 10-00739 (Verslo^6) Printed on/012812mo Submitted into the public record inconnection with items NA.2nn 09'15'11 Priscilla A.Thompson City Clerk b. Pool or billiard teb|es, vondinO machines, laundry mochineo, kiddie hdes, and automatic music machines; c. Any game.machine, contrivance, Vrdevice that may beCOnsbo�d aoagarnbUnqde�oe under o�te��� law, rn mny�use0endGameorMaoh|nethat ' includes Qmelement oy chgnce and may allow the user to become entitled to receive any nnoney, credLit e|iowance.nradditional chance touse the qame or machine. Arcade Amusement Center means m place of business that has at |omat5O amusement qarnes or machines on premises which are operated for the entertainment of the 0eDero| public and tourists as a bona fide amusement facility. Examples of such facilities /ndude, but are not limited to, Chuck E.Cheese, Gannevvorkn.orDave and Busters. Mini -Arcade Amusement Center means a place of business accessory or incidental to another business (i.e. e restaurant, theater, bovvinq oUeK biUiarda, etc.) that has 10-49 amusement qameu or machines on premises which are operated for the entertainment of the general public and tourists anabona fide accessory amusement facility. Operator means any pnrson, finn, ooOoorotinn, asnonaUon, owner oraqent who shall ovvn, wperate, or otherwise control an Amusement Game or Machine; on Arcade Amusement Center; oro Mini -Arcade Amusement Center. Sen. 12'2. Location ofAmusement Gamennr Machines; Exception Required. a. An Operator shall not |ooab* and operate an Amusement Game or Machine within a room orenclosed area not open tothe qenero|public. }faroom where anAmusement Game orMachine isboinqoperated iolocked orbarricaded, arebuttable presumption is created that the area is not open to the qeneral public in violation of this section. b. There shall be no more than four(4)Amusement Games or Machines issued to on Operator per location. -More than four (4)AmuoonnentGames orMachines ataparticular location will require further review from the P|anninq and Zoninq Departments. yWonaower. the |ncmtjoo shall require approval by the City Commission by a four fifths (4/5)vote. o. Amusement Games or Machines, uptofour (4) per |omation, shall only be allowed in zoninOtnanamdsT5'Oand above, aaofhqht. More than four (4)machines atalocation are only allowed in zoning tnanseoiuT0-O or above, and must obtain City Commission approval asdescribed above. Sec. 12-3. Business tax receipts (BTR). In addition to the requirements of Chapter 31 of the City Code, the following shall apply: o. Prior to beinq issued a BTR from the City, the Operator must present a state Amusement (3onne or Machine certificate from the Department of Revenue and any applicable county BTRfor each Amusement Game orMachine in operation at every location. Operator will need to provide the City with proof ofa certificate issued by Submitted into the public record inconnection with items &Wk.2on 09'15'11 Priscilla A.Thompson City Clerk the Department ofRevenue for an Arcade Amusement Center ora Mini -Arcade Amusement Center and any applicable county BTRs for such use. b. The Operator of o One (1) BTR per Amusement Game or Machine at each location shall beissued inthe name ofthe Operator. The Operator must provide tothe City a notarized affidavit from the business owner and the property owner a|lowinq operation of Amusement Games or Machines within the business and property. respectively. Prior to the issuance of the BTR. the Operator shall provide the City the affidavits ofconsent from the business owner and the Property owner. AUBTRs must be displayed within public View and accessible in an area within five (5) feet from the Physical site ofthe Amusement Game or Machine. BTRofor Amusement Games or Machines are not transferable from one (1) Operator to another. If an Operator wishes to relocate an Amusement Game or Machine covered under a current BTR from one (1) location to another, then the Operator must submit a new application together with the corresponding transfer fee to change locations. A new business tax receipt will be issued idenhfyinq the new location of that Amusement Game orMachine and a corrected BTR shall be issued raOenUnq the removal of the Amusement Game or Machine at the previous location. The name, address, and telephone number of the Operator must be attached to the front of the Amusement Game or Machine in a location easily read by Amusement Game or Machine users with the size oflettering equal toorgreater than twelve (12)point type c It aheU be unlawful for the owner, lesnor, manaqer, or person in uharqe of any business premises to permit any such Amusement Game or PNoohina upon such premises unless such Amusement Game or Machine has the BTR required by this Code displayed thereon. d. For purposes of this subsection, each individual animated screen shall constitute one (1) Amusement Game or Machine regardless of whether the screen is encased in a oonso|e, cobinei, or other fixtura, with other screens which receive electric power, through one (1) source or cord, or are set into motion or permitted to function throuqh the use ofone (1)bill acceptor, where the player may select ocame otany one (1) screen, such that at any one (1) time you may have more than one (1) person playing or operating qumoa, at different screens independently from onnther. No artifice or scheme shall be used to circumvent the intent of this subsection. e. Cdy,,ktpff shq�U be for the placement of a BTR pq each individual Amusement (3arne of . The BTR uhoU be of material approved by he y that cannot be tampered with or removed once affixed tnthe Amusement Game or Machine and will ue|f-dnotruct, pull apart, or become void upon nonnovo| from any Amusement Game or Machine. No BTR may be transferred from any one Amusement Game or Machine to another Amusement Game or Machine. Any Operator who attempts to remove a BTR from an Amusement Machine or Game without prior authorization from the City shall be aubiedto the provisions described inSection 12-8. Submitted into the public record inconnection with items NA'2on 09-15-11 Priscilla A.Thompson City Clerk [ c�;—n�-trued as,,,a qpmpling device under state law i luc4ng ny amusement qg or machine that simulates a slot machine, casino card game, or any electronic casino Amnl9.iysuch game crmachine includes an element of chance and user to receive any mq[py,additional chance to qsp-the, or machine. Notwithstanding the language in this provision, paragraph (f) ohoU not apply to pans -mutual facilities properly allowed under referendum or federal law. KNoroovur, paragraph UD shall not apply toohi|dran'o amusement Games or Machines located in bona fide Arcade Amusement Centers and allowable under Chapter 849`Florida Statutes. Sec. 12-44, Failure to pay Machine license feeapbte|n a business tax receipt (BTR)i seizure and disposition of machines. (e) /n the event of nonpayment of the fee for m 800nno BTR required for any rohOd nnnohnnAmunement Game or K4achine, authority is hereby given and granted bl the director of fi*e***Cdy Manager or his designee to seize the m*adho+�*AmuoementGonne or yNmoh|ne, and, in the event unyrnuohinoAmuomment Game or Machine is seized for the nonpayment of any Uconso foo BTR, there shall be udded, charged and collected by the city an additional sumo hau|inq fee of$5.0A$125,00 for each Amusement Game or Machine -seized and on additional storage fee of$10.O0 per day for each Amusement Game or Machine store hauling ohorgoc for ooh nnochin,� so seized. In the event anynnonhinoAnnunement Game or Machine has been seized for the nonpayment of any license h:o BTR, such maG4i*eAmuxementGame nrMachine shall not be released or returned until and unless the owner oroporotorOperatnr thereof has paid to the city the necessary 0conoufoo BTR, e*Rd tA� ${�}Qstorage fee, and hauling charges. (b) The director offinoncoCKy Manager or his designee ls hereby authorized and dinecbed, in all cases where there has been a seizure mode for the nonpayment of the fioonoo foo BTW for coin operated nnmohincDAmunmment Games or h8achineo, to notify the rnuchinonOpenstor.m/henapossible, that the same are being retained under the provioionsofthe city Code, and he/she ohmU, within ninety (QO) days from the date of neizure, permit the ew-F�peFator to regain possession thereof by submission of proof of ownership and the payment of all charges connected with seizure and storage of the machines. (o) After the expiration of such ninety 890\day period, the director offinonooCdy Manager or demiqneeahoU sell any such nnochinocAmunemerdGames or Machines not claimed or reduced topossession by the ewRe Operator thereof at public sale after ten (10) days' notice in writing to the evw+e+Operator, if he can be found, and by advertisement in a newspaper of general circulation in the city. k0 Out of the proceeds of the sm|n of any such rnochinoeAnnus�ment Games or Machines, all coa�Mfirst rem aining fund in poeeeaak/n of the city for m period of one (1),year in order to enable the **WneF-ef the pna*;hNnxesDpmrabmr to prove ownership of the mnoohinosAnnusemeni Games or Mach iines so so|d, and when such ownership is proven, such surplus fund oho|| be paid to the owner Operator. kA After the expiration of one year (1), as provided in the paragraph next pr000cdingthis section, any sums arising from the &alessale of the machineGAmusement Games or Machines City *Miami Page so/oo nm^�/o-0Vr39(Version 0Printed omoom2o,v in accordance with the provisions of this aeoUon, if unduknnd by the Gwn of the n+aehk**s0Verator.shall betransferred tothe general fund ofthe city. Sec, 12-5. Payment of certificate of authorization fee. An Operator shall obtain a certificate of authorization from the City for one (1) year by submittinq a poymentnfa requ|atoryfne in the amount nf$50ODO per Amusement Game or Machine. Each year, the [benotur shall obtain a new certificate of authorization from the City by uubnnittingmrenewal fee inthe amount of $5OU.ODper Amusement Game or Machine. NnBTR shall be issued until the certificate of authorization has been obtained, including the payment of any otheroutetanding regu|atory8oeo. any such rr�achinoupon Such prcmiocsunless cuchmachine has the license required by thic, Code displayed thereon. Sec. 12-36. Machines not hzbeused for gom ibdoduoesandEnfnroennend, (a) No coin opcctedmachine shall bouGod for gambling masogame of ehe-RneAmunoment Games or Machines operated by insertion of coin, sk4] or paper currency shall not beused for gambling oranogame ofchance oostated inF.S. §§840.15---84S,22, Violations nfthese provisions shall besubject topenalties stated inF.3. §84S.23and toacity- imposed fine inthe amount of$5UD.00. (b) No Amusement Game or Machine shall depict, exhibit, illustrate, descrbe, or otherwise relate to sexual conduct, specified anatomical areas, or other adult entertainment as further defined in the QtyZbninq Ordinance. Such an Amusement Game or Machine is strictly prohibited in the City. (c) No Amusement Game or Machine shall allow replays without the exohanqe of anyU)inO of value or insertion of a moin, s|up h)hen, credit card or paper currency. Such an Amusement Game or Machine iostrictly prohibited inthe City. Nnbwdhstandinq the |enquoqe in this section, pamaqnaph (o) shall not apply to para+nutua| hao/diea properly allowed under referendum or federal law. Moreover, paragraph (c) shall not apply to ohi|d[en`samueen}ont Games or Machines located in bona fide Arcade Amusement Centers and allowable under Chaptor848.Florida Statutes. �Ln CL�J � 0 (d) Violations of this Section shall be prosecuted pursuant tothis section and any other �5U U remedy available by /evv ind�dinq but not limited Chapter Article Code Enforcement of �� � . . . . . this Coda. No Amusement Game or Machine shall operate at particular business location or .5 0 o u site for one (1) year from the date of any court order, order of the City Commission, order ofa — Z �u code enforcement board, or order of a special master that determines or upholds that a business owner at any location or Operator operates, allows to be operated, or causes to be placed or operated an Amusement Game or Machine at that particular location or site in violation of any City, County, state, or federal statute, rule, regulation, or ordinance. Section 3. Chapter 31 of the City Code entitled "Local Business Tax and Miscellaneous Business Regulations," is amended in the following particulars:{1) "CHAPTER 31 LOCAL BUSINESS TAX AND MISCELLANEOUS BUSINESS REGULATIONS ARTICLE U. LOCAL BUSINESS TAX RECEIPT (BTR) Sec. 31-50. Schedule of Established BTRs. , , °I " "4. .+-++' , 4 '44'+',)or:117 ''' ""' 0010 Abstract and/or Title Company. Requires License from the Florida Department of Financial Services if selling insurance. 236.00 0040 Accountant, Certified Public (CPA). Requires License from DBPR. 116.00 0030 Accounting and/or Bookkeeping Service. Does not apply to BTR Codes: "0040" & "0020." 116.00 0020 Accounting Professional Association (PA), Corporation (Corp) or Firm. 116.00 0050 Acupuncturist. Requires License from DOH. 116.00 0060 Addressing, Mailing, and Sorting Services. 99.00 0070 Administrative Office. When sole functions are administrative in 131.00 nature and not applicable to any other BTR category. 0080 Adult Care Facility. License from AHCA is required. 99.00 0090 Adult Congregate Living Facility. License from AHCA is required. 99.00 0100 Advertising Agency or Trade Inducement Company. Each company or individual as provided. 667.00 0110 Advertising, Aircraft (per aircraft). 120.00 0160 Advertising, Outdoors: Not exceeding 50 displays. 236.00 More than 50 displays, each display thereafter. 2.00 City of Miami Page 7 of 35 File id. 10-00739 (Version 6) Printed on10/28/2010 0 0 Submitted into the public record |nconnection with items NA.Jon 09'15'11 Priscilla A.Thompson City Clerk kAC1P1 -AktWIRAI City of Miami Master Report File Number: 10-01287 City Hall 3500 Pan American Drive Miami, FL 33133 www.miamigov.com File Number: 10-01287 Version: 1 File Type: Discussion Item Reference: Requester: Cost: File Name: CITY OF MIAMI POLICE CHIEF MIGUEL EXPOSITO BRIEFED COMMISSIONERS ON OPERATION LUCKY 7 Status: Filed Controlling Body: City Commission Introduced: 11/02/2010 Final Action: 10/28/2010 Title: CITY OF MIAMI POLICE CHIEF MIGUEL EXPOSITO BRIEFED COMMISSIONERS ON "OPERATION LUCKY 7", AN OPERATION THAT LED TO THE CONFISCATION OF HUNDREDS OF ILLICIT GAMBLING MACHINES, Notes: Code Sections: Indexes: Sponsors: Attachments: History of Legislative File Agenda Date: Agenda Number: Enactment Date: Enactment Number: Ver- Acting Body: sion: Date: Action: Sent To: Due Date: Return Result: Date: 1 City Commission 10/28/2010 DISCUSSED Submitted into the public record in connection with items NA.2 on 09-15-11 Priscilla A. Thompson City Clerk City of Miami Page 1 Printed on 2/11/2011 Master Report Continued (10-0/287) mermo�s,Actiun: Chair8amoft And, Mr. Mayor, ifwocould recognized the chief ofPolice, who has been forming wn operation known anLucky 7.and if the City Commission could recognize him and allow him togive w brief presentation. The chief ofPolice iothe honorable Miguel Expoaho. You're recognized for the record. Chief Miguel Expooho(Chief ofPm|im):Good morning, Mr. Chairman. Good morning, Commissioners. |norder hogive you anupdate axhnwhat we're doing now, ! think woneed holook back odwhat we've done inthe past. For afive-year period, | supervised the task force that was created within the Police Department, but it involved other City departments where we're doing inspections of nightclubs, eating establishments, and other locations that were encountering some problems with violations of the law, particularly as it pertain to liquor licensing.Some ofthese operations, we also worked with ABT (Alcoholic Beverages and Tobacco), with the state of Florida ABT. What wenoticed uxwestarted doing these operations isthat there were alot ofthese gambling machines in some of these restaurants and bars that we were going into, and we did some research because wodidn't know ifthey were legal ornot. VVokind mffigured they wmnnn't.but wedid some research, and wodetermined that they were illegal machines. The way the law reads iothese are games ofchance. hrequires putting something ofvalue inittoplay them and you have tnget something ofvalue inreturn. |( could bojust credits oritGould bewhere you're getting paid. Now we know that some of the establishments — because we did have undercover officers working there — were actually paying people when you won playing these games. |nsome cases, you just got the credits and you got an opportunity to play again, making these machines illegal.Sowestarted picking up the machines, and we picked up about 1,500 machines, maybe a little more, throughout the City, and the machines just disappeared. VVedid areal good job ofthat. Last year, because ofthe budget situation that we were encountering, the task force was disbanded. And shortly thereafter, I was appointed chief ofPolice. VVestarted noticing inrecent months that the machines were starting Vz creep back slowly into the City, and / sent some ofmyundercover officers out tothe street tosee how bad this problem was. VVowere also getting alot ofcomplaints from citizens who didn't want these machines intheir neiUhbo,hnnd.and rightfully so. Some ofthem were the children ofsome ufour elderly population who had concerns that their parents were actually spending the money that they were receiving in Social Security on these machines because they had been addicted to the gambling that comes from these machines, sowowent ahead and decided we'd put together this operation. Just nothat you'll know, these machines generate alot ofrevenue. It's untaxed revenue. When we were doing the operations previously, we found the books of some of these establishments that had these machines, And wefound one establishment inLittle Havana that had 12gambling machines and they were averaging $18.000profit aweek, non1exed, That's how big this operation is, | will also tell you that some of the people that run these operations are tied into organized crime. One such organization was the Jose Battle organization. And ifyou Goog|eJose Battle, you'll find out that his organization was involved inmurders inNew Jersey, loan sharking; they fire-bombed alot of businesses, and they moved their operations down toMiami. And oxamatter offact, Mr. Battle was convicted of Racketeering and part of that case Game from some of these machines that we confiscated. And Mr. Battle died inprison, but his organization, oofar amwmknow, was dismantled, When we started doing these operations, we found out that there were quite a few machines still in the City that had crept back in, an|mentioned earlier. And wogot 85officers —wosolicited the assistance of State Alcohol Beverage and Tobacco because we wanted to take this operation a step above what wmhad done inthe past. |nthe past wetook care ofthe machines and that was the end of it. And we wanted to find out where these warehouses were that these people were running these — this illegal business, and we solicited the assistance of state division of Alcohol, Beverage and Tobacco because we had no jurisdiction outside the limits of the City of Miami, and we did follow them outside the City. Some of these were in Hialeah. Some ofthem were in unincorporated Dade County. And we also seized machines in that jurisdiction with the assistance of ABT. VVewound uparresting 30 individuals. We did not target the owners of the business. We were more interested in getting the people that owned these machines than wewere ofthe owner ofthe business. You may ask why. They — the people that ran these businesses did not know because they were being told by the people that actually owned the machines that these machines were legal. They went anfar asgetting some City licenses that were supposed to be on other legal machines and put them on these illegal machines and convinced these business owners that the City had actually licensed these illegal machines, uowegave them the benefit ofthe doubt. And unless there was oolicense whatsoever on thosomachineo'wewou|d—didncderremtthem VVejust confiscated the machine. The operation also — we wound up getting close to $12,000 out of these machines, so as I mentioned, that's $12.000 that wmtook out ofthe pockets ofour residents, probably our poorest residents; that rather than using this to survive, they've been using this money to gamble. So that, in a nutshell, is what we did.We are still continuing our investigation because itininvolving organized crime. VVehave also brought the FBI (Federal Bureau of Investigations) in and we're working in conjunction with the FBI on that. Chair Sarnoff: Very good, chief. City of Miami Page 2 Printed on 211112011 Master Report Continued (10-0/287) t 0 . :3 ChiefExpondo: 0kay, ChairSamdt Any Commissioners have any questions? Vice Chair isrecognized. Vice Chair CaroUo: Thank— ChiefExpocito: Iwill mention the other thing, before |forget. The majority ofthese machines were in LiMloHavanaandAUapaMahandin— ViccChairCaroUo: F|a0ami ChnfExponiV/: —F|agamiarea. Okay. Vice Chair Carol|o Mr. Chairman. Chair Samoff: Vice Chair. VimeChair Candko: Thank you, Mr. Chairman. I'd like 0obegin uythanking you, chief. |tiosomething - that / saw kept popping up. Every day | would get complaints more and more |iftlomachines. As matter of fact, they're actually going to businesses and asking would you like to have some machines, | have voiced myconoem. | don't know what has propped [sic]all this tngoon. / don't know ifthe |*gis|ahon, the interpretation of the |o0ix|ahon, nrwhat it is, but the bottom line in that | kept seeing a pmb|onn in my district. | remember from years'past how webattled this, and / was really growing in concern because more and more business owners and residents were telling me the famous muquinitaxkeep popping up, Commissioner. What's going on? Sn)truly, truly appreciate you going out there, you enforcing this, and more than anything, improving our quality of life. So again, thank ChiefExpoodo: You're welcome. And | thank you, Commissioner, 'cause some ofthe complaints came from your office, and | appreciate that, oxwell naCommissioner Suarez. ChairSamoff: Commissioner Godand then Commissioner Suarez. CommisxionarGnrt: \ myself, since being impact quite abit in mydisthc . | really thank you at the same time. Now my question to you also, the new law that we passed, does that help you, the new ordinance that was passed just last month? ChiefExpnsdo: The ordinance does not apply 0nthese machines. ( mean, the ordinance, is pretty clear that there isaquote in there that cites, Florida State, Statute, 94S.which deals with these illegal machines, and dsays cannot use these licenses and aux\hernonmachines that fall vwi#nin Florida State Statute 84S. Cnmmiss�onorGo1 Okay. Now my understanding, when I voted for this ordinance, is that the — previously, people would go and buy "X" amount of machine or permits for machines, and one individual could buy up<o1.00O. My understanding,with the new nnhnancenow that the, property owner can goand purchase and its limit the amount ufmachines that they can have and they cannot bogambling machines. Chief Exposrto,Commissimmac The other the new ordinance also does is that we inspect the machines, we, as a city, and it also sets aside funding for operations such as the one that �wmjust did. VVetook this upon ourselves and wefunded hourselves, but that's something dhat—inthohkunewith the new ordinance, we'll beable touse some o/that funding todofuture operations. We intend to keep close eye on this situation. And | think wesent o loud message out there to these operators that it's not going to stop udthe city limits; we're going to take it beyond, and / think that that's going toreally make on impact on it. CommisoonerGnrL Thank you, chief. ChiefExpoudo: Thank you. ChairSomoft Commissioner Suarez and then Commissioner Dunn. Commissioner Suarez,,, Thank you, Mr, Chairman. Chief, |just want 10echo the sentiments ofthe Vice Chairman and Commissioner Gort in thanking you on behalf of the people of District 4 and the City of Miami Page Printed onan112m// Master Report Continued (10-01287) businesses mfDistrict 4iAnother consequence ofthese machines, aside from the fact that some of our residents were spending what little money they had gambling away their disposable earnings, was that the businesses were also being hurt because the business owners were selling -- or undercutting some oftheir services- I went in, by chance, to one of these convenient stores — gasoline stations and they sold motwo bottled waters for adollar. Now anyone knows that abottled water alone costs about a dollar, dollar twenty-five, so when they're selling two bottled waters for a dollar, you know something's not right, you know. So|really appreciate your efforts inenforcing this because it's not only an issue of quality of life for the residents, which I completely agree with, but it's also an issue of fairness and competition inthe businesses. And | think the reason why | was ooadamant about the legislation iabecause there was ecertain amount of — someone argued that there was ocertain amount of ambiguity as to the interpretation of the statute, the state statute, and what I wanted to do was incorporate what the various appellate courts had opined asfar as the law and the state ofthe law in reference to the statute, which I thought had provided much more clarity. I think you guys have it right in terms ofyour interpretation. Chief Exposito: Right, Commissioner Suarez: | just wanted tomake sure that everyone understood hthe same way and that's why I wanted to clarify the language in the statute, the ordinance, Chief Expooho: Yes, You know, there's alot ofconfusion with this law. Aoamatter offact, when =e first started enforcing this law, the State Attorney's Office was not familiar with it. VVoactually provided classes toincoming prosecutors onthis law, which iokind ofunusual that the Police Department would actually be training prosecutors, but that's what we were doing. We also had to educate the judges because they all believed that there had Unboanexchange ofmoney inorder for htoboaviolation, and that's not so, VVoare probably one ofvery few departments in the slate that is enforcing this. It -- you need a lot of coordination. You need the space to store these machines until they're destroyed, which wowill bedoing. And we're probably one ofthe few jurisdictions inthe state that's actually enforcing this law with the assistance of— obviously ofABT, Chair Sarnoff: Thank you, chief. And Commissioner Dunn. Commissioner Dunn: Thank you, Mr. Chair. Again, |share the sentiments nfmycolleagues. | actually saw the operation inaction the other day, and | noticed the streets were blocked off, had the big truck loading up the machines, so it made me very proud, so just wanted to commend you- ChiefExpmuho:ax|mondionod.it'uthupoorestaremoofthaCdythskaraactua|lyboingimpacted negatively bythese machines. Commissioner Dunn: Thank you. ChiefExpoxho: Okay. CbairSamoff: And, chief, just onbehalf ofthe District 2and being the Chairman, |just want to thank you for the job that you do. I'm sure when you wear the blue uniform, you don't get too many thanks, but | think you're doing more with less. And | don't know how wmcontinue tomake those demands of you and how you continue tofulfill those demands. And | just want tnsay onbehalf ofevery citizen of Miami, I think everybody feels safer since you've been the chief of Police, so thank you. ChiefExponi\o: VVo||. thank you, VVee here to serve, And thank you for those kind wmn1x. /Nc Chairman. Chair Sarnoff: All right. Anyone else? City of Miami Page Printed on211mmo Master Report Continued (10*1297) Text of Legislative File 10-01287 CITY QFM|AM|POLICE CHIEF M|GUELE&POSITO BRIEFED COMMISSIONERS DN"OPERATION LUCKY 7'. ANOPERATION THAT LED TOTHE CONFISCATION OFHUNDREDS OFILLICIT GAMBLING Submitted into the public record inconnection with items NA.2on 09'15'11 Priscilla A'Thompson City of Miami Page 5 Printed on 2/11/2011