Slot Machines are a Lottery

In the bingo case, Greater Loretta Improvement Assn. v State ex rel Boone, 234 So.2d 665 (Fla. 1970) decided that bingo was a pari-mutuel pool and was therefore a specified exception to the prohibition on lottery in the 1968 Constitution of Florida and, therefore, the Legislature could authorize bingo. (234 So.2d at 671) Then, the following statement about slot machines being a form of lottery was made by the Supreme Court of Florida:

Obviously the makers of our 1968 Constitution recognized horse racing as a type of lottery and a ‘pari-mutuel pool’ but also intended to include in its sanction those other lotteries then legally functioning; namely dog racing, jai alai, and bingo. All other lotteries including bolito, cuba, slot machines, etc. were prohibited.

234 So.2d at 672

This ruling does, however, stand in contrast to the advisory opinion in year 2004 about a ballot question, Advisory Opinion to the Attorney General re Authorizes Miami-Dade and Broward County Voters to approve Slot Machines in Pari-mutuel Facilities, 880 so.2d 522 (Fla. 2004) in which the Supreme Court of Florida completely overlooked its 1970 opinion in Greater Loretta and cited all the way back to a 1935 case decided under a different Florida Constitution to rule that the question of whether a slot machine was a lottery . . . turned on the peculiar test set out in Lee v. City of Miami, 163 So. 486 (Fla. 1935) of, “whether, or not, the vice of it infected the whole community or country, rather than the individual units of it.” (880 So.2d at 525, citing also to Hardison v. Coleman, 164 So. 520 (Fla. 1935)).

It seems inaccurate when the holding of the case Lee v. City of Miami is characterized as “slot machines are not a lottery” — when a more balanced characterization of what the court actually ruled (under that different constitution) would be that “slot machines are not necessarily a lottery – but they can be under certain circumstances.” This is illustrated by this quote from the final paragraph (163 So. at 490) of the majority opinion in Lee, which upheld an act of the Legislature authorizing and licensing certain coin operated devices (later repealed):

Chapter 17257 on its face does not clearly offend against organic law, nor do the coin-operating vending machines described in section 2, the use of which is restrained, constitute lotteries per se. It may be that some of them, or possibly all of them in their operation, will become such; but we leave that question to be determined when a specific case arises.

It seems clear that the Supreme Court of Florida, even in making that ancient ruling (under a different constitution), thought that slot machines could become a lottery under the right circumstances . . . but the ruling has been incorrectly (or, incompletely) cited as saying otherwise. Under the circumstances, there has been no direct overturning of Greater Loretta Improvement Assn. v State ex rel Boone, 234 So.2d 665 (Fla. 1970) and Greater Loretta should be seen as the more persuasive case when it holds:

All other lotteries including bolito, cuba, slot machines, etc. were prohibited.

Greater Loretta, supra, 234 So.2d at 672.

Joseph A. Cocchiarella, Assistant State Attorney
Orlando, Florida. JCocchiarella@sao9.org