Florida Senate - 2009              PROPOSED COMMITTEE SUBSTITUTE
       Bill No. SB 788
       
       
       
       
       
                                Barcode 230330                          
       
       580-03118A-09                                                   
       Proposed Committee Substitute by the Committee on Regulated
       Industries
    1                        A bill to be entitled                      
    2         An act relating to a gaming compact between the State
    3         of Florida and the Seminole Tribe of Florida; defining
    4         terms; providing that the a previous compact between
    5         the Tribe and the Governor is not approved or ratified
    6         by the Legislature; directing the Governor to
    7         negotiate a gaming compact with the Tribe; specifying
    8         requirements and minimum standards for the compact;
    9         specifying the date on which the authority of the
   10         Governor to negotiate a compact expires; specifying
   11         games that may be authorized for play pursuant to the
   12         compact; specifying revenue sharing between the state
   13         and the Tribe; requiring the release of certain gaming
   14         revenues to the state; providing for the reduction of
   15         the Tribe’s net win on which revenue sharing is based
   16         if additional Class III games are authorized under
   17         certain circumstances; providing for completion of the
   18         term of the compact in the event that the voters
   19         repeal a constitutional provision authorizing slot
   20         machines at certain pari-mutuel facilities; providing
   21         that the compact becomes void as the result of a
   22         judicial decision or decision of the Secretary of the
   23         United States Department of the Interior invalidating
   24         certain provisions of the compact; specifying limits
   25         on the term of a compact; limiting the number of
   26         facilities at which gaming may occur; specifying
   27         requirements for a central computer system on gaming
   28         facility premises; requiring that the system provide
   29         the state with access to certain data; specifying the
   30         authority of the state to oversee gaming activities by
   31         the Tribe; requiring medical professionals employed at
   32         the Tribe’s gaming facilities to have certain minimum
   33         qualifications; requiring access for municipal or
   34         county emergency medical services; specifying minimum
   35         construction standards for the Tribe’s gaming
   36         facilities; specifying minimum environmental
   37         standards; requiring the Tribe to establish procedures
   38         to dispose of tort claims; requiring the Tribe to
   39         maintain a minimum amount of general liability
   40         insurance for tort claims; prohibiting the Tribe or
   41         its insurer from invoking sovereign immunity under
   42         certain circumstances; requiring the Tribe to waive
   43         its sovereign immunity for disputes relating to the
   44         compact; requiring presuit arbitration of disputes
   45         relating to the compact; requiring the Tribe to
   46         maintain nondiscriminatory employment practices;
   47         requiring the Tribe to use its best efforts to spend
   48         its revenue in this state; providing legislative
   49         intent to review the compact; directing the Governor
   50         to negotiate agreements with Indian tribes in this
   51         state, subject to approval by the Legislature,
   52         relating to the application state taxes on Indian
   53         lands; providing a contingent effective date.
   54  
   55  Be It Enacted by the Legislature of the State of Florida:
   56  
   57         Section 1. As used in this act, the term:
   58         (1)“Agreement” means the document executed by the Seminole
   59  Tribe of Florida and the Governor on November 14, 2007,
   60  published in the Federal Register on January 7, 2008,
   61  subsequently invalidated by the Florida Supreme Court in the
   62  case of Florida House of Representatives, et al., v. Crist, No.
   63  SC07-2154.
   64         (2)“Class II gaming” means the forms of gaming defined in
   65  25 U.S.C. s. 2703(7) and by the regulations of the National
   66  Indian Gaming Commission in effect on January 1, 2009.
   67         (3)“Class III gaming” means the forms of Class III gaming
   68  defined in 25 U.S.C. s. 2703(8) and by the regulations of the
   69  National Indian Gaming Commission in effect on January 1, 2009.
   70         (4)“Compact” means the compact between the Seminole Tribe
   71  of Florida and the State of Florida executed by the Tribe and
   72  the state pursuant to the provisions of the Indian Gaming
   73  Regulatory Act of 1988 and this act, and approved or deemed
   74  approved by the United States Department of the Interior
   75  pursuant to 25 U.S.C. s. 2710(d)(8).
   76         (5)“Net win” means gross gaming revenue for Class III
   77  games, as such games are defined by the federal Indian Gaming
   78  Regulatory Act of 1988, which is the difference between gaming
   79  wins and losses, before deducting costs and expenses.
   80         (6)“Revenue sharing cycle” means a 12-month period, with
   81  the first such cycle beginning on the day the compact executed
   82  pursuant to this act is approved or deemed approved by the
   83  Secretary of the United States Department of the Interior, as
   84  evidenced by the date of publication in the Federal Register.
   85         (7)“Tribe” means the Seminole Tribe of Florida.
   86         Section 2. The agreement executed by the Governor and the
   87  Tribe is not ratified or approved by the Legislature.
   88         Section 3. (1)The Governor is hereby authorized and
   89  directed to execute a compact on behalf of the State of Florida
   90  with the Tribe pursuant to the federal Indian Gaming Regulatory
   91  Act of 1988, 18 U.S.C. ss. 1166-1168, and 25 U.S.C. s. 2701 et
   92  seq., and this act for the purpose of authorizing class III
   93  gaming on Seminole lands within this state.
   94         (2)The Legislature recognizes the efforts of the Governor
   95  and the Tribe in the negotiation and formulation of the
   96  agreement. The Legislature intends that the compact entered into
   97  pursuant to this act conform to the terms and standards in the
   98  agreement to the extent that such terms and standards do not
   99  conflict with the minimum terms and standards provided in this
  100  act.
  101         (3)A compact that meets all of the minimum terms and
  102  standards specified in this act does not require subsequent
  103  approval or ratification by the Legislature. The compact shall
  104  specify a procedure for amending the compact. Any amendment to
  105  the compact which is consistent with the minimum terms and
  106  standards provided in this act does not require subsequent
  107  approval or ratification by the Legislature.
  108         (4)If any provision of the compact relating to covered
  109  games, payments, suspension or reduction in payments, or
  110  exclusivity is held by a court of competent jurisdiction or by
  111  the Secretary of the United States Department of the Interior to
  112  be invalid, the compact is void.
  113         (5)The Governor shall ensure that all revenue sharing
  114  received pursuant to the compact is deposited into the Education
  115  Enhancement Trust Fund.
  116         (6)The Governor shall provide a copy of the compact to the
  117  President of the Senate and the Speaker of the House of
  118  Representatives as soon as it is executed by the state and the
  119  Tribe and before or simultaneous with its submission to the
  120  Department of the Interior.
  121         (7)The Governor shall preserve all documents, if any,
  122  which relate to the intent or interpretation of the compact, and
  123  maintain such documents for at least the term of the compact.
  124         (8)Except for the authority granted to the Governor in
  125  section 7 of this act, the authority granted to the Governor by
  126  this act expires at 11:59 p.m. on December 31, 2009.
  127         Section 4. The Division of Pari-mutuel Wagering of the
  128  Department of Business and Professional Regulation is designated
  129  as the state agency having the authority to carry out the
  130  state’s oversight responsibilities under a compact authorized by
  131  this act.
  132         Section 5. (1)Notwithstanding any other provision of law
  133  to the contrary, the Governor is authorized to negotiate a
  134  compact with the Tribe to permit the Tribe to offer for play any
  135  of the following games that are permitted in this state under
  136  limited circumstances at licensed pari-mutuel facilities:
  137         (a)Slot machines, as defined in s. 551.102(8), Florida
  138  Statutes.
  139         (b)1.Charity celebrity poker tournaments, if the compact
  140  specifies the minimum percentage of the net proceeds from each
  141  poker tournament which must be donated to a charitable
  142  organization organized pursuant to s. 501(c)(3) of the Internal
  143  Revenue Code, limits the number of tournaments that may be held
  144  each year, limits the maximum number of days that tournaments
  145  may be played, and limits the frequency of the tournaments.
  146         2.The compact shall permit the Tribe to conduct games of
  147  poker without betting limits if such games are authorized in
  148  this state to any person for any purpose.
  149         (c)Any devices or games that are authorized under state
  150  law to the Florida State Lottery, except that the Tribe may not
  151  offer such games through the Internet unless others in the state
  152  are permitted to do so.
  153         (d)Any new Class II game authorized by Florida law for any
  154  person for any purpose.
  155         (2)Notwithstanding any other provision of law to the
  156  contrary, a compact negotiated pursuant to this section shall
  157  permit the Tribe to offer for play banked card games, including
  158  baccarat, chemin de fer, and blackjack or 21.
  159         (3)Notwithstanding any other provision of law to the
  160  contrary, a compact negotiated pursuant to this act shall permit
  161  the Tribe to offer for play all of the following Class III games
  162  if blackjack or 21 is authorized for play at licensed pari
  163  mutuel facilities located in Miami-Dade County or Broward County
  164  pursuant to s. 23, Article X of the State Constitution and
  165  chapter 551, Florida Statutes:
  166         (a)Roulette or roulette style games; and
  167         (b)Craps or craps style games.
  168         (4)(a)In consideration for authority to play the specified
  169  Class III games described in this section, the compact shall
  170  provide for revenue sharing through periodic payments to the
  171  state during the term of the compact. Revenue sharing shall be
  172  $400 million each cycle, plus 10 percent of net win above $2
  173  billion up to $4 billion, plus 25 percent of net win above $4
  174  billion. However, revenue sharing may be:
  175         1Reduced or suspended if the net win in any cycle fails to
  176  reach $1.37 billion and shall resume when the net win for a
  177  cycle or any subsequent period when revenue sharing is reduced
  178  or suspended reaches $1.37 billion.
  179         2.Reduced pursuant to subsection (8).
  180         (b)The compact shall specify a process for determining the
  181  timing and amount of any reduction of revenue sharing payments.
  182  The process shall provide the state with at least 30 days to
  183  review the Tribe’s projection or determination that the net win
  184  for any cycle will or has failed to reach $1.37 billion.
  185         (5)Revenue sharing required by this section shall be in
  186  addition to assessments by the state, consistent with 25 U.S.C.
  187  s. 2710(d)(3)(C)(iii), in such amounts as are necessary to
  188  defray the costs of regulating activity conducted pursuant to
  189  the compact; payments, consistent with 25 U.S.C. s. 2710
  190  (b)(2)(B)(v), to help fund operations of local government
  191  agencies; any other provision of the compact relating to
  192  financial obligations of the Tribe; taxation by the Indian
  193  tribe, consistent with 25 U.S.C. 2710(d)(3)(C)(iv), of certain
  194  activities in amounts comparable to amounts assessed by the
  195  State for comparable activities; and any separate legal document
  196  obligating the Tribe to make payments or to share revenues.
  197         (6)In recognition of the fact that the Tribe has been
  198  conducting gaming consistent with the provisions of the
  199  agreement, all revenues shared or anticipated to be shared
  200  pursuant to that agreement before the date the compact is
  201  approved or deemed approved by the United States Department of
  202  the Interior shall be ratified and released to the State of
  203  Florida without further obligation or encumbrance. Acceptance of
  204  such funds by the state does not validate the agreement or the
  205  operation of the Class III gaming by the Tribe during the period
  206  a valid compact was not in effect.
  207         (7)In consideration for any additional Class III games
  208  authorized for the Tribe under subsection (3), the compact may
  209  not provide for the elimination or reduction of revenue sharing
  210  in the event that blackjack is authorized for play at licensed
  211  pari-mutuel facilities located in Miami-Dade County or Broward
  212  County.
  213         (8)The compact must provide that if one or more additional
  214  Class III games not specifically provided for in this act are
  215  authorized in this state, such event shall not result in the
  216  elimination of revenue-sharing payments under the compact, but
  217  shall provide that the Tribe’s net win on which its revenue
  218  sharing is based be reduced by an amount reasonably calculated
  219  by the parties to equal the net win from any such additional
  220  Class III gaming activities that are authorized after the
  221  effective date of the compact. However, the compact does not
  222  permit a reduction in revenue sharing as the result of an
  223  authorization for additional Class III games in Gadsden,
  224  Liberty, and Franklin Counties or counties west of those
  225  counties.
  226         (9)The compact may not provide for the elimination or
  227  reduction of revenue sharing based on the authorization of
  228  historic racing or additional Class II gaming in this state,
  229  including any Class II electronic gaming machines that may be
  230  authorized for play at licensed pari-mutuel facilities anywhere
  231  in the state.
  232         (10)The provisions of the compact, including the revenue
  233  sharing provisions, may not be reduced or eliminated by the
  234  existence of any gaming activities being conducted in Florida at
  235  the time this compact is ratified which are illegal or are of
  236  unsettled legal status as long as the state and its local
  237  governmental entities maintain at least their current reasonable
  238  level of enforcement actions against such illegal gaming
  239  activities.
  240         (11)If the Florida Constitution is amended to repeal the
  241  slot machine amendment in s. 23, Article X of the State
  242  Constitution, the Legislature authorizes the Seminoles to
  243  continue to offer the play of slot machines under the terms of
  244  the compact authorized pursuant to this section during the
  245  remainder of the term of the compact.
  246         (12)The compact shall provide that the compact is void if
  247  any provision of the compact relating to covered games,
  248  payments, or reduction or suspension of payments, or exclusivity
  249  is held by a court of competent jurisdiction or determined by
  250  the Secretary of the United States Department of the Interior to
  251  be invalid.
  252         Section 6. The compact negotiated pursuant to this act must
  253  meet the following additional minimum terms and standards:
  254         (1)The compact shall provide for a term of at least 10
  255  years and no more than 25 years.
  256         (2)The compact shall authorize the Tribe to offer the play
  257  of specified Class III games at no more than seven existing
  258  Seminole Tribe of Florida gaming facilities. The compact shall
  259  identify the specific lands, locations, and existing gaming
  260  facilities on which the Tribe is authorized to offer the play of
  261  such games under the compact. The compact may permit any
  262  identified facility to be expanded or replaced by another
  263  facility on the same reservation with advance notice to the
  264  State of no less than 60 calendar days, but the number of
  265  existing facilities on each reservation shall remain the same.
  266         (3)The compact shall provide that all gaming machines on
  267  the premises of the authorized facilities will be connected to a
  268  central computerized reporting and auditing system on the gaming
  269  facility premises. The system shall:
  270         (a)Collect on a continual basis the unaltered activity of
  271  each gaming machine in use at the gaming facility.
  272         (b)Provide access to the state by a dedicated
  273  telecommunications connection, on a “read-only” basis, upon
  274  entry of appropriate security codes and permit access to and
  275  downloads of the wager and payout data of each machine,
  276  electronically captured by the central computer. However, the
  277  compact may not authorize the state to alter or affect the
  278  operation of any gaming machine or other device on the premises
  279  of the authorized gaming facility or the data provided to the
  280  central computer.
  281         (c)Be constructed and installed at the Tribe’s expense to
  282  provide electronic access to the state for the machine wager and
  283  payout data collected by the central computer.
  284         (d)Be designed in conjunction with the state and the
  285  Tribe’s technical staff so as to preserve the integrity of the
  286  system and the data contained therein, to minimize any
  287  possibility of unauthorized access to the system or tampering
  288  with the data, and to minimize any access by the state to
  289  information other than machine wager and payout data residing in
  290  the central reporting and auditing system.
  291         (4)The compact shall designate the Division of Pari-mutuel
  292  Wagering of the Department of Business and Professional
  293  Regulation as the state agency authorized to carry out the
  294  state’s oversight responsibilities under the compact.
  295         (5)The compact shall require the state to monitor the
  296  Tribe’s compliance with the provisions of the compact, and:
  297         (a)Permit the state to have access, during regular hours
  298  of operation, to any public areas of each gaming facility that
  299  is conducting gaming activities under the authority of the
  300  compact without prior notice, or with concurrent notice, and to
  301  any nonpublic area of the facilities without prior notice, or
  302  with concurrent notice;
  303         (b)Permit the state to conduct oversight testing,
  304  including random inspections, of any games or devices authorized
  305  under the compact;
  306         (c)Provide for annual audits by the state or an
  307  independent third party to review slot machine and other Class
  308  III gaming compliance under the terms of the compact;
  309         (d)Require an annual independent financial audit to verify
  310  compliance with any obligations of the Seminole Tribe of Florida
  311  under the compact, including financial and auditing provisions,
  312  which audit shall be paid by the Tribe; and
  313         (e)Permit the state to inspect, review, and receive
  314  requested copies of any records of the Tribe which it deems
  315  necessary to verify compliance with any gaming or financial
  316  obligations of the Seminole Tribe of Florida under the compact.
  317         (6)The compact may not:
  318         (a)Limit the number of times or opportunities that the
  319  state may inspect any covered games or gaming devices in
  320  operation at facilities on a random basis to confirm that the
  321  operation and play of the games or devices conform to
  322  manufacturer’s technical standards or to the standards specified
  323  in the compact; or
  324         (b)Limit the number of times the state may review internal
  325  controls and violations by authorized facilities.
  326         (7)The compact shall require the Tribe to:
  327         (a)Employ, permit, or authorize only medical professionals
  328  at its gaming facilities who are licensed by this state; and
  329         (b)Allow unimpeded access to the gaming facilities by
  330  municipal or county emergency medical services.
  331         (8)The compact shall require the Tribe to ensure that the
  332  construction and maintenance of gaming facilities will comply
  333  with standards that are at least as stringent as the Florida
  334  Building Code.
  335         (9)The compact shall provide that, at a minimum, the
  336  environmental requirements of any federal permit must ensure
  337  that the standards established for the state’s environmental
  338  resource permitting program as provided for in s. 373.414,
  339  Florida Statutes, are met.
  340         (10)The compact shall require the Tribe to establish
  341  written, reasonable procedures for the disposition of tort
  342  claims arising from personal injury or property damage alleged
  343  to have been suffered by patrons and invitees of its authorized
  344  gaming facilities and to enact such tribal law as is necessary
  345  to implement these procedures. The procedures shall include all
  346  such tort claims, including claims that exceed the liability
  347  insurance limits specified in subsection (11). The procedures
  348  shall include all time limits that are applicable to the
  349  disposition of the tort claim and a provision that, upon
  350  request, the patron or invitee, or the patron’s or invitee’s
  351  designated representative, shall be provided with a copy of the
  352  procedures as well as the name, address, and telephone number of
  353  the operator of the facility and the mailing address and
  354  telephone number of the clerk of the Tribe’s tribal court. The
  355  Tribe shall not be deemed to have waived its sovereign immunity
  356  from suit with respect to such claims by establishing such
  357  procedures but must agree not to assert its sovereign immunity
  358  with respect to such claims as provided in subsection (11).
  359         (11)The compact shall provide that, during the term of the
  360  compact, the Tribe shall maintain a policy of commercial general
  361  liability insurance which has a combined single limit for
  362  personal injury and property damage of not less than $2 million
  363  per occurrence and in the aggregate. The compact shall require
  364  the amount of the coverage to be adjusted annually based on
  365  increases in the Consumer Price Index. The insurance policy
  366  shall:
  367         (a)Prohibit the insurer or the Tribe from invoking tribal
  368  sovereign immunity up to the limits of the policy with respect
  369  to any claim covered under the policy and disposed of in
  370  accordance with the Tribe’s tort claim procedures.
  371         (b)Include covered claims made by a patron or invitee for
  372  personal injury or property damage.
  373         (c)Permit the insurer or the Tribe to assert any statutory
  374  or common law defense other than sovereign immunity.
  375         (d)Provide that any award or judgment rendered in favor of
  376  a patron or invitee shall be satisfied solely from insurance
  377  proceeds.
  378         (12)The compact shall provide a reasonable process for the
  379  expedited resolution of disputes between the state and the Tribe
  380  which arise under the compact. The compact shall:
  381         (a)Provide that the Tribe waives its sovereign immunity as
  382  to any disputes between the state and the Tribe arising out of
  383  the compact.
  384         (b)Require presuit nonbinding arbitration before a lawsuit
  385  can be filed concerning the dispute.
  386         (c)Provide that either party may demand presuit nonbinding
  387  arbitration to resolve any dispute between the parties arising
  388  under the compact.
  389         1.The party demanding the presuit nonbinding arbitration
  390  shall immediately ask the American Arbitration Association to
  391  furnish a list of 11 arbitrators, each of whom shall have at
  392  least 5 years of commercial arbitration experience and no
  393  financial interest in or prior relationship with any of the
  394  parties or their affiliated or related entities or principals.
  395         2.The state and the Tribe shall each select a single
  396  arbitrator from the list provided by the American Arbitration
  397  Association within 10 days after receipt, and the individuals so
  398  selected shall choose one additional arbitrator from the list
  399  within the next 10 days. The three arbitrators selected shall
  400  constitute the panel that shall arbitrate the dispute between
  401  the parties pursuant to the American Arbitration Association
  402  Commercial Arbitration Rules and chapter 682, Florida Statutes.
  403         3.At the conclusion of the proceedings, which shall be no
  404  later than 90 days after the demand for arbitration, the
  405  arbitration panel shall present to the parties a proposed
  406  agreement that the majority of the panel believes equitably
  407  balances the rights, interests, obligations, and reasonable
  408  expectations of the parties.
  409         4.The parties shall, within 10 days after the arbitration
  410  panel’s issuance of the proposed agreement, enter into such
  411  agreement or notify the opposing party of its intent to reject
  412  the agreement and proceed with a lawsuit to resolve the dispute.
  413         5.Each party shall pay its respective costs of arbitration
  414  and shall pay one-half of the costs of the arbitration panel.
  415         (13)The compact shall provide for the exercise of fair
  416  employment practices by the Tribe. The compact shall require the
  417  Tribe to maintain employment standards that are comparable to
  418  the standards provided in federal laws and state laws which
  419  forbid employers from discriminating in connection with
  420  employment of persons working at the gaming facilities
  421  identified under the compact on the basis of race, color,
  422  religion, natural origin, gender, age, disability or handicap,
  423  or marital status. The Tribe may give preference in employment,
  424  promotion, seniority, layoffs, or retention to members of the
  425  Tribe and other federally recognized Tribes. The Tribe shall
  426  provide a process for employee disputes which permits the
  427  employee to be represented by an attorney or other legally
  428  authorized representative. The process shall permit the employee
  429  to use language interpreters, including interpreters for the
  430  deaf or hard of hearing.
  431         (14)The compact shall provide that the Tribe will use its
  432  best efforts to spend its revenue in this state to acquire goods
  433  and services from Florida-based vendors, professionals, and
  434  material and service providers.
  435         (15)It is the intent of the Legislature to review a
  436  compact entered into under the provisions of this section every
  437  5 years. It is the intent of the Legislature to consider the
  438  authorization of additional Class III games for operation by the
  439  Tribe based upon successful implementation of the compact and
  440  the history of compliance with the compact.
  441         Section 7. The Governor of this state is hereby authorized
  442  and directed to execute an agreement on behalf of the State of
  443  Florida with the Indian tribes in this state, acting on a
  444  government-to-government basis, to develop and implement a fair
  445  and workable arrangement to apply state taxes on persons and
  446  transactions on Indian lands. Such agreements shall address the
  447  imposition of specific taxes and exemptions from those taxes. An
  448  agreement executed by the Governor pursuant to the authority
  449  granted in this section shall not take effect unless approved or
  450  ratified by the Legislature.
  451         Section 8. This act shall take effect on the same date that
  452  section 1 of SB 836, or similar legislation, takes effect if
  453  such legislation is adopted during the 2009 legislative session,
  454  or an extension thereof, and becomes law.