Guest Opinion: Amendment 13 – a poor wager for Floridians

Paul Hawkes
Retired Appeals Court Judge Paul Hawkes

On election day voters will face a very long ballot. Included on the ballot will be Amendment 13 — which proposes two things most Floridians oppose.

The first is the conversion of local live dog racing tracks into freestanding mini casinos. Of course most of these new casinos are located in communities that have never allowed freestanding casinos in the past. Communities that may have wished to avoid the crime and other problems casinos bring, but passage would render their preferences meaningless.

The second, the focus of this article, is that passage of the Amendment will take hundreds of millions from hard working men and women in Florida who will have their tax dollars used to lawfully compensate our neighbors and fellow citizens who would lose their livelihood and investments they have made in reliance on current law.

Obviously, government can never take away property from someone without paying for it. Florida has long had laws to protect private property rights. Florida law recognizes that property rights include the property’s value. Take away the value of someone’s property and you have taken away the property. We recognize this when government takes away property to build a road, a school, or to set aside some environmentally valuable land.

Amendment 13 doesn’t change the fact that government cannot take private property without paying for it. The bizarre aspect here is not that taxpayers will have to pay for the property Amendment 13 takes, but that taxpayers are not being asked to buy land to build a road that benefits everyone, or to preserve some environmentally delicate property for future generations — they are being asked to pay to fund potentially up to 20 new free standing casinos. Casinos. That is truly corporate welfare — hundreds of millions of tax dollars to benefit casinos instead of being used to benefit schools, health care or even meet transportation needs. No one has ever argued that casinos are so important that taxpayers should fund their creation. But that is what Amendment 13 does.

Passage of Amendment 13, because of the undisputed impact on property and property values (dogs, kennels, barns, practice tracks, score boards), will give rise to thousands of claims under two different provisions of law. Those provisions are the Bert Harris Act and a legal concept called ‘inverse condemnation. Although the two provisions are similar, and in some circumstances over lap, they are intended to ensure that government – here the state of Florida – does not take away property without compensation to the property owner and they illustrate Florida’s commitment to the core value of private property rights. The Bert Harris act provides compensation to real property owners who suffer a loss of their property’s value based on the regulatory actions of government – such as outlawing a formerly legal business by a constitutional amendment. Inverse condemnation applies to any property, real or personal, when government changes the law (or changes the rules) when the property owner can show that the new law caused a loss in property value. The inverse condemnation loss is measured by what the courts call ‘the “reasonable investment-backed expectations” of the property owner.

Obviously, such a dramatic change (Dog racing has been legal in Florida for almost 100 years) would result in injury to thousands of Floridians. Article I, Section 21 of the Florida Constitution makes provision for how someone gets a remedy when they are injured. That section reads: “The courts shall be open to every person for redress of ANY injury.” (Emphasis added) As these claims will, rightfully, be litigated under the Bert Harris Act or reverse condemnation, the question becomes; what is the ultimate cost to the state, or realistically, what is the cost of Amendment 13 to taxpayers? Using previous case rulings for guidance tax payers will have to pay — including the cost of defense, court cost, expert witness fees, attorney fees to plaintiff counsel, and the actual compensation for lost “investment-based expectations” of property value — could easily exceed $250 million and could conceivably approach $500 million.

The proposal’s passage would trigger thousands of lawsuits, as every entity that could establish a legitimate claim that Amendment 13 adversely affected their “reasonable investment-backed expectations” could be expected to file a lawsuit. Because each claim would be based on unique facts each claim would have to be separately litigated. Litigation would require lawyers, experts and incur cost. Cost the taxpayers would have to pay.

Of course the only way the Casino operators and their radical out-of-state partners can do this is to deceive Florida voters.

The radical proponents deceive voters by concealing the fact that for casino operators to earn the millions of extra dollars from their new casinos, they must put the Florida based greyhound racing industry out of business. Thousands of honest hard working Floridians will lose their businesses so a couple dozen businesses can become casinos without local permitting and experience windfall profits.

The radical proponents also deceive voters by saying that Amendment 13 will some how ‘save the dogs.’ Amendment 13 merely prohibits a greyhound dog from running around a tract for 40 seconds twice a week in the state of Florida while someone wagers on the result. An activity no one has ever argued the dogs don’t enjoy doing. They have been running for thousands of years and, what the radical proponents won’t tell you is they will continue to do so.

Please understand, the new casino operators don’t want to give up their profit from individuals wagering on dog racing, they will just broadcast the race into Florida, instead of holding the race in Floirda. This means that they will have to devote less land to dog tracks and will be able to devote more land to slot machines and card rooms. Of course, another secret the radical proponents don’t want voters to know is that Florida has never been able to collect a significant portion of the taxes these ‘simulcast’ races legally owe. This historic fact works to the advantage of the radical proponents of Amendment 13. It allows them to illegally keep millions more for their casino kingdoms, but denies those same millions to Florida schools and health care for Floridians.

Dogs will still race and Floridians will still be able to wager on the race, they will be able to go to the same places to place their bets, their wagers will affect the odds and become part of the prize pool — just as they do now. The difference, if Amendment 13 passes, is the dog will race in Alabama, West Virginia, or somewhere else. There are at least two consequences. One, the race will not be under the control of the Florida Department of Business Regulation and, two, taxes will go unpaid.

So, no dog will be saved if Amendment 13 is passed. All Amendment 13 would do is provide undeserved and illegal profits to some new casino operators, put thousand of honest hard working Floridians out of work, generate thousands of law suits, and cost Florida taxpayers hundreds of millions of dollars.

Amendment 13 — a good deal for a couple dozen dog tracks, a bad deal for 20 million Florida citizens.